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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 05:20, 15 May 2019
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It used to be the case that a claim for spousal support that was rejected 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. | It used to be the case that a claim for spousal support that was rejected 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 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. | 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. | |||
===Changing an order granting support=== | ===Changing an order granting support=== | ||
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*increase the amount payable as spousal support, or | *increase the amount payable as spousal support, or | ||
*impose a new obligation to pay support. | *impose a new obligation to pay support. | ||
===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 usually means 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 the ''[[Divorce Act]]'', you have to apply to vary on a material change in circumstances. | |||
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 central considerations: | |||
*First, does the paying spouse have to retire – mandatory retirement or it is medically necessary? In these circumstances, the court is most likely to grant some relief. | |||
*Second, can the receiving spouse also retire? If he or she also has retirement income, perhaps spousal support is no longer necessary or appropriate. Such may be the case where, for example, the parties each have a pension, or the paying spouse’s pension was divided, and they will both in effect be retiring at the same time. | |||
*On the other hand, if the receiving spouse is not working and has not yet reached pensionable age under CPP, cutting off spousal support may leave him or her without adequate means of support. This can happen where, for example, the paying spouse wants to take early retirement. It can even happen where the paying spouse wants to retire at the usual age – 65 – but the receiving spouse is much younger. The paying spouse might have to retire later. The court can’t force the paying spouse to continue working, but it can refuse to reduce support until the receiving spouse is able to retire him- or herself. | |||
In most cases, if retirement is an issue, the parties will be best off seeking to mediate a solution, or applying to court before they have made any irrevocable changes in their employment. | |||
===Remarriage=== | |||
Similarly, there is a common assumption that support ends when the receiving spouse remarries or is living with a new common-law “spouse”. 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. | |||
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{{REVIEWED | reviewer = [[David Dundee]] and [[Gillian Oliver]], | {{REVIEWED | reviewer = [[David Dundee]] and [[Gillian Oliver]], May 15, 2019}} | ||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||
{{Creative Commons for JP Boyd}} | {{Creative Commons for JP Boyd}} | ||
[[Category:JP Boyd on Family Law]] | [[Category:JP Boyd on Family Law]] | ||