Difference between revisions of "Changing Family Law Orders, Awards and Agreements Involving Spousal Support"

}}An order for spousal support can be changed by another order. An agreement on spousal support can be changed by another agreement or, if the parties can't agree, can be set aside by the court and replaced with an order.  

The test the courts use varies depending on whether it is an order or agreement the court is changing, or, in the case of an order, whether it is an interim or final order. Whichever test is used, there must usually be a good reason why a change is necessary.

The Court of Appeal has said that interim orders for spousal support are intended to be temporary, rough-and-ready decisions intended only to tide the parties over until a final order is made, rather than an exhaustive review of the merits of a claim for spousal support. As such, the courts often prefer not to change interim orders on an interim basis; rather, they would prefer the parties go straight to trial. In the 1999 case ''[http://canlii.ca/t/1d1rl Hama v. Werbes]'', 1999 CanLII 5828 (BCSC), the Supreme Court said that interim orders should only be varied on an interim basis when:

<blockquote>"there is a compelling change in circumstances, such that one or both of the parties would be seriously prejudiced by waiting until trial."</blockquote>

This compelling change in circumstances must be serious and of such importance that one or both of the parties will be severely disadvantaged unless the matter is addressed immediately. From the point of view of the spouse receiving support, the ''recipient'', a compelling change in circumstances might be:

*a loss of supplementary income, such as employment income or WCB benefits, without which the recipient cannot support themselves on the amount of spousal support presently being paid,

*an unexpected increase in child care obligations, because of, for example, the extended illness of a child or the birth of a new child, such that the spousal support paid is no longer adequate.

*a loss of income, or an unexpected but long-lasting drop in income, such that they can no longer afford to make the spousal support payments, or

The court’s attitude makes perfect sense, from its point of view.  Judges would rather make decisions with the most information possible rather than having to make interim arrangements, time after time, on imperfect or incomplete evidence.  But sometimes litigants do not have a choice.  Their situation has changed, or the evidence has changed, and they cannot wait for a trial.  Their trial may be a long way off, or they have not set one yet.

 

 

 

If the court agrees and varies the interim order before trial, the new order will also be an interim order and will remain in effect until the issue of spousal support is determined by a final order following trial or a settlement (or until it is varied by another interim order).

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:

Only the Supreme Court can make or vary orders under the ''Divorce Act'', and the act only applies to people who are or were married to each other. Applications to vary interim orders are brought by filing a court form called a Notice of Application.

The process for making interim applications in Supreme Court is described in the chapter [[Resolving Problems in Court]] within the section [[Interim Applications]].

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:

Interim orders for spousal support under the ''Family Law Act'' can be made and varied by both the Provincial Court and the Supreme Court. Only the Provincial Court may vary Provincial Court orders and only the Supreme Court may vary Supreme Court orders.

 

The process for making interim applications is described in the chapter [[Resolving Problems in Court]] within the section [[Interim Applications]].

A ''final order'' for spousal support is an order made following a trial or made by the agreement of the parties as a settlement of the proceeding. Changing an order is called ''varying'' an order.

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; 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.

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)(1) of the ''[[Divorce Act]]'' says this on the subject:

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.

<blockquote>"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2012, and continuing on the first day of each and every month thereafter, subject to a review by either on or after 1 June 2015."</blockquote>

The main feature about a reviewable order is that the parties do not have to establish a material change in circumstances before the review proceeds. Because of this, however, courts prefer that reviewable orders specify what is to be reviewed, and why.  Otherwise, the court has to consider the question entirely afresh, without any baselines or guidance from the first order.  This includes whether support should continue at all, or in what amount, or for what period of time.

When the review date for an order for spousal support arrives, the payor's obligation to keep making the support payments does not end. The payor's obligation does not end or reduce until the review is held. If neither party is proceeding with the review, the old order continues to be in effect.

A review of spousal support can be handled through negotiation, collaborative settlement processes, mediation, arbitration, or in court. If one of the parties applies to court for the review, the court will hear the matter ''de novo'', a fresh hearing, as if the question of spousal support was being determined for the first time. There is no need to establish a change in circumstances at a review hearing.

A ''consent order'' is an order that the parties agree the court should make. Sometimes, judges review the proposed terms and decide for themselves whether the order is appropriate — such as for divorce orders or orders concerning children.  Other times, where the order concerns matters that affect only the two parties consenting — such as property division or spousal support — judges are content to simply endorse whatever the parties have agreed to themselves.  In other words, a consent order is a kind of hybrid, containing elements both of private agreement as well as judicial oversight or decision-making.  Sometimes the former is more predominant; sometimes the latter.

 

As such, there has always been this question:  is the test for changing such an order the usual test for changing court orders generally, or is the appropriate test that which the court applies when making an order to replace an agreement?  For a time, the second answer appeared to be the correct one.  But in a case called ''L.M.P v L.S.'' 2011 SCC 64, the Supreme Court of Canada decided that, for cases under the ''Divorce Act'' at least, the first approach was the right one:  Has there been a material change in the means and needs connected to the marriage of either spouse that, if known of at the time of the original order, would have resulted in a different order being made?

It is not always very easy to change an order that was made outside the province because the courts of our province give a great deal of respect to the judgment of the court that made the original order. There are a bunch of other reasons why it can be hard to change an order made outside of British Columbia, but that's the meat of it.

The process that will apply depends entirely on whether the original order was made under the federal ''Divorce Act'' or under the family law legislation of the jurisdiction whose court made the original order.

===''Divorce Act'' Orders===

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 court sends the provisional order to the court that made the original order, and

#on notice to the other party, the original court holds a hearing to ''confirm'' the provisional order.

This process requires two hearings: one here in British Columbia for a provisional order, and a second in the original court to confirm that order. The court in the other province may or may not confirm the provisional order, and may choose to send the order back to BC for more information. Until the provisional order is confirmed, it has no effect and the original order will continue to be the operative order.

Orders that were made elsewhere in Canada under provincial family law legislation, or were made in certain countries other than Canada, can be changed by someone living in British Columbia using the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. Governments that have agreed to follow this process under the ''Interjurisdictional Support Orders Act'' are called ''reciprocating jurisdictions''.

The countries that will cooperate with a proceeding under the ''Interjurisdictional Support Orders Act'' include: South Africa, Zimbabwe, Austria, the Czech Republic, Germany, Gibraltar, Norway, the Slovak Republic, the United Kingdom, the United States of America, the Special Administrative Region of Hong Kong, Singapore, Australia, Fiji, Papua New Guinea, New Zealand, and Barbados. The official list of jurisdictions is contained in the [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation].

#the applicant completes a bunch of forms provided by the provincial reciprocals office,

#on notice of the other party, the original court holds a hearing on the applicant's application and may make an order varying the original order.

Under this process, there is only one hearing, and that hearing is held by the court that made the original order. The court in the reciprocating jurisdiction may or may not make the order that the applicant wants, and may send the application back to British Columbia for more information. The original order will continue in effect until the court in the reciprocating jurisdiction varies it.

This new process is intended to simplify things, by having just the one hearing. To do that, however, the process relies very heavily on paperwork and the officials of our government and those of the reciprocating jurisdiction. As a result, applications under the ''Interjurisdictional Support Orders Act'' can take a long time to process.

Contact details for the British Columbia Reciprocals Office, along with the forms required by the ''Interjurisdictional Support Orders Act'', can be found at [http://www.isoforms.bc.ca www.isoforms.bc.ca].

To vary an order of a country that does not participate in ''Interjurisdictional Support Orders Act'' applications, you will have to apply to vary the order in that country.

People can reach an agreement that spousal support will or will not be paid, without having to go to court. Usually a deal on spousal support is worked out in a separation agreement, but marriage agreements and cohabitation agreements can also talk about whether support will be payable when a relationship ends. Family law agreements are discussed in more detail in the [[Family Law Agreements]] chapter.

Family law agreements are private contracts reached between two people. While family law agreements can be attacked and enforced on the principles of contract law, the support provisions of an agreement can also be argued under the ''Divorce Act''. This is because a couple's private agreement on spousal support doesn't oust the authority of the court to make an order for support under the ''Divorce Act''.

However, the court will usually give considerable weight to family law agreements and will prefer to make an order that reflects the terms of an agreement. Without proof of something like duress or coercion, or some other problem, the court will treat the agreement as representing the honest and informed intentions of the parties to settle their dispute.

Because of the importance the court will usually give to an agreement, it can sometimes be necessary to attack the agreement itself under the law that applies to contracts. An agreement might be found to be invalid for one or more of the following reasons:

*one of the parties was forced to enter into the agreement,

*one party was too much under the influence or control of the other party in consenting to the terms of the agreement,

*one party lied to the other party or hid information from that party, and these misleading representations were the basis on which the agreement was executed.

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.

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:

If the court can answer all three questions “yes,” then the agreement survives. But if the answer to any of the three is “no,” then the court may make an order different from the agreement.

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 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:

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.

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 section 165 of the ''Family Law Act''. This application will be treated in the same way that all other applications for support are treated.

It may be possible to avoid court altogether if the spouses can agree about the new arrangements and are willing to change the part of the agreement that deals with spousal support. All things considered, this is a much cheaper and much less confrontational way of dealing with the problem. It may well be that the payor is willing to agree to continue or start paying support, or that the recipient is willing to agree to a reduction in the amount of support paid.

Family law agreements are changed by executing another written agreement that updates the original agreement. Changing an agreement is called ''amending'' the agreement. The agreements are usually called ''amending agreements'', ''amendment agreements'', ''addendum agreements,'' or something else to that effect and only deal with the part of the original agreement that needs to be changed. They are much shorter than the agreements that they amend, and the text of the agreement usually says something like this:

<blockquote><tt>Frank and Anne agree that their separation agreement, executed on 1 January 2012, shall be amended by cancelling Paragraph 12 of that agreement and replacing it with the following:</tt></blockquote>

==Retirement==

Retirement will often constitute a material change in circumstances. For the paying spouse, it usually means less income is available to pay support.  For the receiving spouse, it can mean less support is needed to supplement a retirement income. Section 169 of the ''[[Family Law Act]]'' expressly provides for a review in either event.  Under section 17 of the ''[[Divorce Act]]'', you can apply to vary if you can show that retirement does in fact represent a material change in circumstances.  But applying to vary, or reviewing, is not the same as changing.

The danger lies in just assuming the court will vary spousal support when you retire.  Too many paying spouses make this assumption, retire, and then are astounded when the court does not reduce support.  Why would this happen?  Well, it depends on a few things:

*First, does the paying spouse have to retire (i.e., mandatory retirement, or it is medically necessary)? In these circumstances, the court is most likely to grant some relief.

*Second, how would this affect the receiving spouse? Can they also retire? It is one thing if the receiving spouse still has a good job, or also has, or will have, retirement income.  In either event, perhaps spousal support is no longer necessary or appropriate.  Such may be the case where, for example, the paying spouse’s pension was divided, and they will both in effect be retiring at the same time.

*Finally, when the paying spouse retires, will they have other sources of income? Perhaps they have another job lined up, or intend to go into business for themselves.  This extra income will certainly affect the calculations.

If a pension has been divided, you should also check the order or agreement that divides it.  Sometimes, there are limitations on when the pension holder can take retirement.  Early retirement may not be allowed, for example, as it often results in less pension income — for both parties.

Also be wary of orders or agreements that say spousal support may be reviewed on the retirement of the paying spouse.  As noted above, reviewing is not the same as changing — and certainly not the same as terminating.

In most cases, if retirement is an issue, the parties will be best advised to negotiate or mediate a solution, or to apply to court, ''before'' they have made any irrevocable changes in their employment.

Similarly, there is a common assumption that support ends when the receiving spouse remarries or has lived with someone else in a marriage-like relationship for a couple years.  Certainly, this is often the case—but not always.  Remarriage or re-partnering is often a material change in circumstances, but that is not the end of the analysis. Especially where, in granting the original order the court found significant compensatory grounds for entitlement, the support obligation may be reduced, but not cancelled.

* [https://clicklaw.bc.ca/resource/4645 Legal Services Society's Family Law website's information page "Court orders"]

**Under the section "Change an order or set aside an agreement made in BC" see "When can you change a final order?"

{{REVIEWED | reviewer = [[David Dundee]] and [[Gillian Oliver]], May 15, 2019}}