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{{JP Boyd on Family Law TOC}} | {{JP Boyd on Family Law TOC}} | ||
The test used to decide if an obligation to pay spousal support should change depends on whether the the obligation exists because of a court order or an agreement. Whichever test is used, there must usually be a good reason why a change is needed and there must have been a significant change in at least one party's financial circumstances before a spousal support obligation will be changed. | |||
This chapter will review changing interim orders for spousal support, changing the different kinds of final orders for support, changing orders that were made in a different jurisdiction and changing the spousal support provisions of family agreements. | |||
I. Changing Interim Orders for Spousal Support | |||
An "interim order" is a kind of temporary order that is made after an action has started but before the action is finally decided at a trial. Changing an order is called "varying" an order. | |||
The Court of Appeal for British Columbia 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 the application and a party's entitlement to support. As such, the courts often prefer to allow an interim order to stand, and an applicant seeking to vary the interim order cannot expect to just walk into court and have the issue heard again; there must be a very good reason why a change in the interim order is required. In the 1999 case Hama v. Werbes, the Supreme Court of British Columbia said that interim order should only be varied when: | |||
"there is a compelling change in circumstances, such that one or both of the parties would be seriously prejudiced by waiting until trial." | |||
This "compelling change" in circumstances, also called a "material change," must be serious in nature 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, a material change might be: | |||
a loss of supplementary income, such as employment income or WCB benefits, without which the recipient cannot support him- or herself on the amount of spousal support presently being paid; | |||
an unexpected increase in expenses, such that the amount of spousal support being paid becomes inadequate; or, | |||
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. | |||
From the point of view of the spouse paying support, the payor, a material change might be: | |||
a loss of income, or an unexpected but long-lasting drop in income, such that he or she can no longer afford to make the spousal support payments; or, | |||
an unexpected increase in the payor's child care or child support obligations, such that his or her disposable income has decreased and the spousal support payments cannot be maintained. | |||
If the court agrees and varies the interim order, the new order will also be made on an interim basis, 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 again by another interim order. | |||
A. The Family Relations Act | |||
Spousal support can be awarded under s. 93(1)(b) of the provincial Family Relations Act. Section 9 of the act allows the court to make interim orders for spousal support and s. 20 allows the court to vary such orders. | |||
Interim orders for spousal support under the Family Relations Act can be made in either the Provincial (Family) Court or in the Supreme Court. Provincial Court interim orders cannot be varied except by the Supreme Court. The Supreme Court can vary its own interim orders. | |||
Applications to vary Provincial Court and Supreme Court interim orders are brought by filing a court form called a Notice of Motion. The process for making an interim application is described in the chapter The Legal System > Interim Applications. | |||
B. The Divorce Act | |||
Interim spousal support can be awarded under s. 15.2(2) of the federal Divorce Act. Section 17 of the act allows the court to vary interim support orders. | |||
Only the Supreme Court can make or vary orders under the Divorce Act. Applications to vary interim orders are brought by filing a court form called a Notice of Motion. The process for making an interim application is described in the chapter The Legal System > Interim Applications. | |||
Back to the top of this chapter. | |||
II. Changing Final Orders for Spousal Support | |||
A final order for spousal support is an order made following the trial of an action or made by the agreement of the parties as a settlement of the action. Changing an order is called "varying" an order. | |||
In general, a final order is just that, final. Without an appeal, the final order represents the end of an action and cannot be changed. This rule applies whether the order is for the dismissal of a party's claim for spousal support or for the payment of spousal support. | |||
A. Changing an Order Refusing Support | |||
It used to be the case that a claim for spousal support which was dismissed in a final judgment was permanently dismissed, such that any future application for support could not proceed, no matter how things might have changed for someone in financial need. | |||
A 2002 case of the British Columbia Court of Appeal, Gill-Sager v. Sager, has called into question just how "final" final orders about spousal support should be. In this case, the court issued a strong caution to trial judges against permanently dismissing a spouse's claim for support. Subsequent cases have interpreted this decision to mean that spousal support claims should never be permanently dismissed, only adjourned, so that it will always be open to a spouse to apply for spousal support later on. | |||
In practice this means that a final order should not say that a claim for support is dismissed but is only adjourned generally. | |||
A party who seeks spousal support after a judgment dismissing support must be able to establish a significant change in his or her financial circumstances, such that if the change were known of at the time of trial, the judge would have made a different decision. For example, a party who develops a debilitating illness following trial — a trial held while the party was in perfect health — and can no longer hold a job, might be entitled to apply for spousal support when the illness is discovered. | |||
B. Changing an Order Granting Support | |||
When a party seeks to vary a final order for spousal support, he or she 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 T. (T.L.A.) v. T. (W.W.), 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 of the Divorce Act provides, in part, as follows: | |||
(4.1) 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. | |||
(7) A variation order varying a spousal support order should | |||
(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown; | |||
(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; | |||
(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and | |||
(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time. | |||
Section 96(1) of the Family Relations Act states that: | |||
If an application is made to vary or rescind a [spousal support order], the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any. | |||
To put it another way, both the Divorce Act and the Family Relations Act require that there be a material change in circumstances with respect to either or both parties' needs, means, financial circumstances and ability to pay spousal support before the court can consider an application to vary a spousal support order. Section 17(7) of the Divorce Act sets out the considerations a court should apply in making a new spousal support order, once the material change has been proven. These mirror the criteria the court is required to take into account in making the original order, set out in s. 15.2(6) of the act. | |||
Note that the publication of the Spousal Support Advisory Guidelines is not a material change in circumstances that will entitle someone to apply to vary an order for spousal support. | |||
1. Changing Reviewable Orders for Support | |||
"Reviewable orders" for spousal support are orders that impose an indefinite obligation to pay spousal support, but allow the order to be reassessed every now and then. Reviewable orders will say something like this: | |||
"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2010, and continuing on the first day of each and every month thereafter, and this order may be reviewed on the application of either party on or after 1 June 2014." | |||
When the review date for an order for spousal support arrives, the payor's obligation to keep making the support payments does not end. At that time, it is usually open to both parties to make an application with respect to the order for spousal support. The payor may wish to have the amount of support reduced or have his or her obigation to pay support ended. The recipient, on the other hand, usually seeks to have the support maintained, and, sometimes, increased. If neither party makes an application to have the issue of spousal support re-evaluated, the existing order continues to be in effect. | |||
Once one of the parties make an application for the review of the order for spousal support, the issue is heard by the court as a hearing de novo, a fresh hearing of the issue as if the question of spousal support were being determined for the first time. | |||
There is no need to establish that one or both of the parties have had a material change in circumstances at a review hearing. The criteria that the court will apply in deciding whether spousal support is payable are those used in making the initial decision; see the earlier chapter in this section, Spousal Support > Basic Principles. | |||
2. Changing Consent Orders for Support | |||
A "consent order" is an order that the parties agree the court should make. As such, consent orders have a different status than orders that were argued about, since there is a strong presumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and knew what their circumstances were at the time of the order and what they were likely to be in the future. | |||
The test for changing consent orders for spousal support used to be the "material change" test, referred to above. The question was "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?" In the 2003 case of Miglin v. Miglin, the Supreme Court of Canada decided that the material change test should no longer apply to changing agreements for support and described a three-step test to be used when deciding whether a change is warranted: | |||
Was the order negotiated and entered into fairly, that is, was there an equality of bargaining power? | |||
If the circumstances that the order was entered into were reasonable, the the court must consider whether the order met the objectives for spousal support set out in s. 15.2 of the Divorce Act (or in the Family Relations Act) at the time it was made. | |||
If the order did meet the objectives set out in the Divorce Act (or the Family Relations Act), does the order 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 (or the Family Relations Act)? | |||
In other words, a court asked to change a consent order for spousal support should first look at the circumstances under which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Secondly, the court should consider whether the order met the criteria for spousal support set out in the Divorce Act. Thirdly, if the order passes the first two parts of the test, the court should look at whether the order continues to reflect the parties' intentions at the time the order was made, and whether the order continues to meet the criteria set out in the act. | |||
Back to the top of this chapter. | |||
III. Orders Made Outside of British Columbia | |||
It is not always very easy to change an order that was made outside the province because the courts of our province must give a high amount of respect to the jurisdiction of the court that made the original order. There 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. | |||
A. Divorce Act Orders | |||
Orders that were made elsewhere in Canada under the federal Divorce Act can be changed here under s. 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 ss. 18 and 19 of the act: | |||
the applicant applies here for a "provisional" order changing the original order; | |||
the court sends the provisional order to the jursidiction 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 chose 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. | |||
B. Other Orders | |||
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 Interjurisdictional Support Orders Act. Governments that have agreed to following 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 are: South Africa, Zimbabe, 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 process under this act is as follows: | |||
the applicant completes a bunch of forms provided by the provincial Reciprocals Office; | |||
our Reciprocals Office sends the forms to the court that made the original order; and, | |||
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 which 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 the government of the reciprocating jurisdiction. As a result, applications under the Interjurisdictional Support Orders Act can take a long time to process. | |||
The British Columbia Reciprocals Office, along with the forms required by the Interjurisdictional Support Orders Act, can be found at 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. | |||
Back to the top of this chapter. | |||
IV. Changing Agreements for Spousal Support | |||
People can reach an agreement that spousal support will be paid outside the court process. Usually they will agree to pay support in a separation agreement, but marriage 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 Agreements section. | |||
A. Family Law Agreements and Contract Law | |||
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 Family Relations Act and the Divorce Act. This is because a couple's private agreement on spousal support doesn't oust the independent jurisdiction of the court to make an order for support under the Divorce Act and the Family Relations Act. | |||
Although the courts will always retain the jurisdiction to make an order for spousal support, they 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, 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. 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; | |||
the agreement is fundamentally unfair; or, | |||
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. | |||
All of these arguments are based on the law of contracts, not on a particular piece of legislation. An application that the agreement be found to be invalid essentially asks the court to set the disputed part of the agreement aside, as if that part was never included in the original agreement. | |||
After contract law has been used to challenge the agreement, the court will use the Divorce Act or the Family Relations Act to decide whether someone is entitled to receive support and, if so, how much support should be paid. | |||
B. Applications for Spousal Support | |||
If the court decides that an agreement is unfair, the person seeking support must convince the court that it should make an order for spousal support. This application will be treated in the same way that all other applications for support are treated. See the chapter Spousal Support > Basic Principles for more information. | |||
If the court makes an order for spousal support, the order will supersede the agreement. The order can be filed with the Family Maintenance Enforcement Program if it needs to be enforced. | |||
C. Amending the Agreement | |||
It may be possible to avoid court altogether if the parties are willing to amend the part of the agreement which deals with spousal support. All things considered, this is a much cheaper, less aggressive and less confrontational way of dealing with the problem. It may well be that the payor is willing to agree to continue paying support or that recipient is willing to agree to a reduction in the amount of support paid. | |||
Family law agreements are changed by executing a another written agreement which updates the original agreement. The agreements are usually called "Amending Agreements," "Amendment Agreements" or "Addendum Agreements," and only deal with the part of the agreement that needs to be changed. They are much shorter than the agreements that they amend, and the body of the agreement usually says something like this: | |||
"Frank and Anne agree their Separation Agreement, executed on 1 January 2010, shall be amended by cancelling Paragraph 12 of that agreement and replacing it with the following: | |||
Neither party shall be entitled to receive spousal support from the other." | |||
An amendment can also: | |||
reduce the amount someone must pay as spousal support; | |||
increase the amount payable as spousal support; or, | |||
impose a new obligation to pay support. | |||
==Further Reading in this Chapter== | ==Further Reading in this Chapter== | ||