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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 18:58, 30 July 2019
, 18:58, 30 July 2019no edit summary
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===The ''Divorce Act''=== | ===The ''Divorce Act''=== | ||
Interim spousal support can be awarded under | Interim spousal support can be awarded under section 15.2(2) of the federal ''Divorce Act''. Section 17(4.1) of the act allows the court to vary these orders if there has been: | ||
<blockquote><tt>... a change in the condition, means, needs or other circumstances of either former spouse . . . 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>... a change in the condition, means, needs or other circumstances of either former spouse . . . 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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===The ''Family Law Act''=== | ===The ''Family Law Act''=== | ||
Spousal support can be awarded under | Spousal support can be awarded under section 165 of the provincial ''Family Law Act''. Section 216(1) of the act allows the court to make interim orders for spousal support, and, under section 216(3), allows the court to vary such orders: | ||
<blockquote><tt>(3) On application by a party, a court may change, suspend or terminate an interim order made under subsection (1) if satisfied that at least one of the following circumstances exists:</tt></blockquote> | <blockquote><tt>(3) On application by a party, a court may change, suspend or terminate an interim order made under subsection (1) if satisfied that at least one of the following circumstances exists:</tt></blockquote> | ||
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===''Divorce Act'' Orders=== | ===''Divorce Act'' Orders=== | ||
Orders that were made elsewhere in Canada under the federal ''Divorce Act'' can be changed here under | Orders that were made elsewhere in Canada under the federal ''Divorce Act'' can be changed here under section 5 of the act, as long as both parties live in British Columbia. Where one party still lives in the province whose courts made the original order, a party living in BC can apply to change the original order using a process described in sections 18 and 19 of the act: | ||
#the person making the application, the ''applicant'', applies here for a ''provisional'' order changing the original order, | #the person making the application, the ''applicant'', applies here for a ''provisional'' order changing the original order, | ||
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All of these arguments are based on the law of contracts, not on a particular piece of legislation. | All of these arguments are based on the law of contracts, not on a particular piece of legislation. | ||
If the court sets aside an agreement for spousal support, the person asking for support must convince the court that it should make an order for spousal support, under | If the court sets aside an agreement for spousal support, the person asking for support must convince the court that it should make an order for spousal support, under section 15.2 of the ''Divorce Act'' or section 165 of the ''Family Law Act''. This application will be treated in the same way that all other applications for support are treated. | ||
===Agreements for spousal support and the ''Divorce Act''=== | ===Agreements for spousal support and the ''Divorce Act''=== | ||
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In the 2003 case of ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', 2003 SCC 24, the Supreme Court of Canada decided that the material change test shouldn't apply to changing agreements and described a three-step test to be used when deciding whether a change is warranted: | In the 2003 case of ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', 2003 SCC 24, the Supreme Court of Canada decided that the material change test shouldn't apply to changing agreements and described a three-step test to be used when deciding whether a change is warranted: | ||
*Was the agreement negotiated and entered into fairly, that is, was there an equality of bargaining power? | *Was the agreement negotiated and entered into fairly, that is, was there an equality of bargaining power? | ||
*If the circumstances that the agreement was entered into were reasonable, the court must consider whether the agreement met the objectives for spousal support set out in | *If the circumstances that the agreement was entered into were reasonable, the court must consider whether the agreement met the objectives for spousal support set out in section 15.2 of the ''Divorce Act'' at the time it was made. | ||
*If the agreement did meet the objectives set out in the ''Divorce Act'', does the agreement still reflect the original intention of the parties and does it continue to meet the objectives for spousal support set out in the ''Divorce Act''? | *If the agreement did meet the objectives set out in the ''Divorce Act'', does the agreement still reflect the original intention of the parties and does it continue to meet the objectives for spousal support set out in the ''Divorce Act''? | ||
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===Agreements for spousal support and the ''Family Law Act''=== | ===Agreements for spousal support and the ''Family Law Act''=== | ||
The ''Family Law Act'' provides some important rules about agreements dealing with spousal support. First, under | The ''Family Law Act'' provides some important rules about agreements dealing with spousal support. First, under section 165(3), the court cannot make an order for spousal support if there is an agreement on spousal support, including an agreement that support not be paid, until the agreement is set aside. Second, under section 164, two tests are set out to help the court decide when an agreement on spousal support should be set aside. | ||
Under the first test, at | Under the first test, at section 164(3), the court must look at the situation of the parties when they were negotiating and executing the agreement. Like in the ''Miglin'' case, discussed above, the court is required to consider whether these circumstances existed when the parties were making their agreement: | ||
<blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote> | <blockquote><tt>(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote> | ||
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The last part of this test, at subsection (d), is about whether there is a defect under the law of contracts that might make the agreement void or voidable. The other parts of the test are all about the fairness of the parties' negotiations. | The last part of this test, at subsection (d), is about whether there is a defect under the law of contracts that might make the agreement void or voidable. The other parts of the test are all about the fairness of the parties' negotiations. | ||
Now, even if there are no issues with an agreement under | Now, even if there are no issues with an agreement under section 164(3), the second test, at section 164(5), allows the court to set aside agreements that are "significantly unfair" taking into <span class="noglossary">account</span>: | ||
<blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote> | <blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote> | ||
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Section 161, mentioned in subsection (e), is the part of the act that sets out the objectives of spousal support. | Section 161, mentioned in subsection (e), is the part of the act that sets out the objectives of spousal support. | ||
If the court sets aside an agreement for spousal support, the person asking for support must convince the court that it should make an order for spousal support, under | If the court sets aside an agreement for spousal support, the person asking for support must convince the court that it should make an order for spousal support, under section 165 of the ''Family Law Act''. This application will be treated in the same way that all other applications for support are treated. | ||
===Amending the agreement=== | ===Amending the agreement=== | ||