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Difference between revisions of "Changing Family Law Orders, Awards and Agreements Involving Spousal Support"
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Changing Family Law Orders, Awards and Agreements Involving Spousal Support (view source)
Revision as of 21:43, 26 June 2019
, 21:43, 26 June 2019→Changing final orders for spousal support
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A 2003 case from the Court of Appeal, ''[http://canlii.ca/t/5cdj Gill-Sager v. Sager]'', 2003 BCCA 46, called into question just how ''final'' final orders about spousal support should be. Without deciding clearly whether an order dismissing support could be revived, the court recommended only dismissing a claim with liberty to reapply in the event of a material change in circumstances. | A 2003 case from the Court of Appeal, ''[http://canlii.ca/t/5cdj Gill-Sager v. Sager]'', 2003 BCCA 46, called into question just how ''final'' final orders about spousal support should be. Without deciding clearly whether an order dismissing support could be revived, the court recommended only dismissing a claim with liberty to reapply in the event of a material change in circumstances. | ||
Since the Gill-Sager case, the Court of Appeal has now clarified that | Since the Gill-Sager case, the Court of Appeal has now clarified that; indeed, even a bald dismissal of spousal support can be revived if there has been a material change in circumstances: [http://canlii.ca/t/hrwn6 ''Sandy v. Sandy''], 2018 BCCA 182. Such cases may be rare, but they can happen — especially, say, if spousal support was dismissed only because the paying spouse could not afford to pay both child and spousal support, and the children are now grown up and no longer in need of child support. | ||
===Changing an order granting support=== | ===Changing an order granting support=== | ||
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When a party seeks to vary a final order for spousal support, they must show that there has been a ''material change'' in circumstances affecting one or both of the parties. A material change is a significant change. In the 1996 case of ''[http://canlii.ca/t/1f0dj T. (T.L.A.) v. T. (W.W.)]'', 1996 CanLII 1190 (BCCA), the Court of Appeal said that a material change is one which is "substantial, unforeseen and of a continuing nature." In the 1995 case of ''G. (L.) v. B. (G.)'', the Supreme Court of Canada said that a material change is one which, if known at the time of the original order, would have resulted in a different order being made. | When a party seeks to vary a final order for spousal support, they must show that there has been a ''material change'' in circumstances affecting one or both of the parties. A material change is a significant change. In the 1996 case of ''[http://canlii.ca/t/1f0dj T. (T.L.A.) v. T. (W.W.)]'', 1996 CanLII 1190 (BCCA), the Court of Appeal said that a material change is one which is "substantial, unforeseen and of a continuing nature." In the 1995 case of ''G. (L.) v. B. (G.)'', the Supreme Court of Canada said that a material change is one which, if known at the time of the original order, would have resulted in a different order being made. | ||
Section 17(4 | Section 17(4)(1) of the ''[[Divorce Act]]'' says this on the subject: | ||
<blockquote><tt>Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.</tt></blockquote> | <blockquote><tt>Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.</tt></blockquote> | ||
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<blockquote><blockquote><tt>(c) evidence of a lack of financial disclosure by either spouse was discovered after the order was made.</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(c) evidence of a lack of financial disclosure by either spouse was discovered after the order was made.</tt></blockquote></blockquote> | ||
Although both the ''Divorce Act'' and the ''Family Law Act'' agree that a change in the "condition, means, needs or other circumstances" of a spouse is required, the ''Family Law Act'' provides two additional factors that would allow the court to change an order | Although both the ''Divorce Act'' and the ''Family Law Act'' agree that a change in the "condition, means, needs or other circumstances" of a spouse is required, the ''Family Law Act'' provides two additional factors that would allow the court to change an order: when new evidence or proof comes to light or improper disclosure is discovered after the last hearing. In other words, you learn that the order was based on incorrect or misleading information. | ||
====Changing reviewable orders for support==== | ====Changing reviewable orders for support==== | ||