Many people think an obligation to pay spousal support ceases upon a decline in the payor’s income, retirement, loss of job or health issues. While the ability of the payor to pay spousal support is a relevant factor, these factors alone may not terminate the obligation to pay spousal support. Variation of spousal support may only happen if there is a material change of circumstances. A material change of circumstances is one that, if known at the time of the original order would have caused a different amount or duration of support to be ordered.
The variation process is both time-consuming and complex, and it requires specific legal expertise. An experienced family law lawyer is an essential if you are contemplating a change to an existing order or agreement.
If you need to stop paying spousal support, or reduce your support payments, call our top-rated Vancouver Spousal Support Variation lawyers today at Nasser Allan LLP on (604) 620 – 8682?for your free initial consultation in this confusing area.
Applicable Law Regarding Variation of a Support Order
If your spousal support order was made under the Divorce Act, section 17(4.1) allows the court to vary a Spousal Support Order if there has been:
... 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.
If your order was made under the Family Law Act, s. 216(3) allows the court to vary a Spousal Support Order if the court is satisfied that at least one of the following circumstances exists:
(a) a change in circumstances has occurred since the interim order was made; (b) evidence of a substantial nature that was not available at the time the interim order was made has become available.
Varying an Agreement for Spousal Support as Opposed to a Court Order
In the 2003 case of Miglin v. Miglin, 2003 SCC 24, the Supreme Court of Canada decided that the material change test shouldn’t apply to changing agreements. Instead, when deciding whether a change in spousal support is warranted, the courts will apply the following three step test:
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 s. 15.2 of the Divorce Actat 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 theDivorce Act?
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.
Does re-partnering amount to a material change of circumstances?
The Supreme Court case of Morigeau v. Moorey 2013 BCSC 1923,v considered whether a spousal support recipient’s common law re-partnering amounted to a material change in circumstances to warrant a reduction or termination in spousal support. The court found that the re-partnering was not a material change in circumstances since wife’s re-partnering was foreseeable in light of the circumstances of this case. Here is what the court found:
In my view, some of the principles that can be derived from the relevant authorities on a s. 17 application to vary spousal support involving re-partnering are as follows:
1. The threshold question in each case is whether there has been a material change in circumstances from the date of the previous order, i.e., a change which, if known at the time, would have resulted in a different order: Willick v Willick;
2. Because of the different tests involved, cases involving initial applications for spousal support under s. 15.2 of the Divorce Act are of limited value in deciding an application to vary under s. 17 of the Divorce Act: L.M.P. v. L.S., Fargey v. Fargey;
3. Although the focus of the analysis is on the original order and the circumstances in which it is made, the court will not consider the correctness of the original order, nor will the original order be departed from lightly: Willick v. Willick;
4. Remarriage or re-partnering is not, in and of itself, sufficient to trigger a material change in circumstances: G. (L.) v. B. (G.), Kelly v. Kelly;
5. If the applicant knew that the former spouse was seeing a third party and cohabitation was foreseeable at the time of the original order, cohabitation may not trigger a material change in circumstance: G. (L.) v. B. (G.), J.W.J.M. v. T.E.R.;
6. The circumstances of the re-partnering may have a bearing on the analysis: Rakose v. Rakose, Redpath v. Redpath.
[27] In the present case, Mr. Moorey was aware of Ms. Morigeau’s new relationship since before the Order under review was granted. Although the new partner now resides with Ms. Morigeau, which was not the case at the time of the Order, the relationship seems little different from a financial perspective. The relationship at the time of the Order was already of some duration. Mr. Moorey was himself in a new relationship at the time. Ms. Morigeau swore an affidavit on September 28, 2011, which said as follows:
“Since the beginning of 2011, I have been in a new relationship with my partner. We do not share expenses nor do I consider us as residing together. We spend significant time together and he does purchase groceries for us but apart from this there is no financial contribution made by my partner. My expenses in my form 8 financial statement reflect my out of pocket expenses. I verily believe to be true that since our separation, the Respondent has been in a relationship with a woman. I have no knowledge if the Respondent is residing with her and/or if she is contributing toward his living expenses.”
[28] In this case, the parties were not young at the time of the Order. Ms. Morigeau was 56. She was out of the work force for much of the marriage. Although she returned to the workforce on a full-time basis one year before the separation, there is a considerable disparity in the parties respective incomes that, given Ms. Morigeau’s limited work experience, is unlikely to change significantly.
[29] The Order refers to the availability of a section 17 review but says nothing regarding re-partnering. The Order also provides for an income-based adjustment of spousal support every three years. This application comes before the first such review, which is scheduled for June 1, 2014.
However, you may be still be able to reduce your spousal support obligation based on re-partnering.
