Variation of Vancouver spousal and child support only happens if there is a material change of circumstances since the making of the original support order. A material change 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 test is designed to discourage frequent attempts to change a support order when there is really not significant change that would justify it. Our top family lawyers will guide you in this area.
Worse still, if you don’t tell the court all the facts that exist at the time of the original court hearing and raise them later the BC court is likely to say tough luck. I bet my readers have concluded this is just “common sense”? This was the focus of the recent BC Court of Appeals decision MacLanders v. MacLanders, 2012 BCCA 482. A husband failed to tell the court and evidently his lawyer he was going to retire during the original support hearing and then tried to raise this as a reason to vary the order of support downward. Can you guess the result?
“He who comes to Equity must come with clean hands.
Equity assists the diligent not the tardy.
When equities are equal the law prevails.”
The term “Equity” is in a general sense, associated with notions of fairness, morality and justice. It is an ethical jurisdiction. On a more legalistic level, “Equity” is the branch of law that was administered in the British Court of Chancery prior to the Judicature Acts 1873 and 1875 and it is a principle which still has its place in the common-law Courts and laws of the present. Whenever a plaintiff seeks an “equitable remedy” they are relying on this notion of “fairness” before the Court. But, as these maxims express, in order to benefit from “fair treatment” before the Court, the plaintiff must also act fairly, honestly, and be upfront and timely about any and all matters that a party expects to rely upon in order to persuade the Court in its decision.
Unfortunately, in a recent Divorce and spousal support case in British Columbia, the husband failed to behave appropriately.
The Claimant, Mr. MacLanders failed to disclose significant facts of his financial circumstances to either his lawyer or the Court. This crucial information likely would have influenced the Court’s decision to award his ex-wife monthly support of $1,111 a month, for an “indefinite” period of time. However, as a result of his failure to disclose this information in a timely fashion, he paid the price, and will now continue to “pay” this price for “an “indefinite” period of time.
Two days after obtaining a Divorce Order, Mr. MacLanders, (the husband), quit his job, elected to take early retirement and cut his annual employment income in less than half. Instead of earning about $65,000 Mr. MacLanders accepted an annual pension income of about $26,000. None of this would have been an issue, and in fact the trial judge would likely have taken all of this into consideration before awarding Mrs. MacLanders, (the wife), indefinite spousal support of $1,111 per month, except that Mr. MacLanders failed to mention any of this to the Judge or even to his own lawyer at any time during the trial.
Only after the case had already been decided did Mr. MacLanders advise his lawyer of his long-standing retirement plans. Upon receiving this news, Mr. MacLanders’ lawyer immediately applied to the Court for an Order to retroactively cancel the spousal support provisions, arguing that the retirement constituted a material change in circumstances. Mr. MacLanders also submitted that his deteriorating health prevented him from continuing to work as a sheet metal worker. But it was too late. The Court found that the husband had failed to establish the legal requirement of a “material change of circumstances” and stated as follows:
[3] The parties… appeared back in front of Mr. Justice Myers on June 16, 2011 for clarification of terms of his March 29, 2011 order… Mr. MacLanders’ retirement on April 1, 2011 was not brought to the attention of Mr. Justice Myers [during the original trial or] at that time either… Mr. Pyper [Mr. MacLanders’ lawyer] says he also did not know that because his client did not tell him. I accept that and, quite frankly, that is too bad for his client. There cannot be any material change in circumstances if there are circumstances existing at the time of the original order of March 29, 2011 that should have been taken into account because they are known at the time of the order that is given.
[4] In this case, Mr. MacLanders apparently knew he was going to retire because he says in March he was going to retire and did not bring that to the attention of the Court. He cannot now come back and seek a retroactive cancellation because he has decided to follow through with that retirement when it was for him to bring that to the attention of Mr. Justice Myers on March 29 and again on June 16, 2011 and he failed to do so.
The plain fact is that law provides that when there is a “material change in circumstances” the Court may reconsider a previous award for child or spousal support. However, the law also very clearly states that there must actually be a change. In other words, there cannot be a “material change in circumstances” when in fact, nothing has changed since the trial. In this case, Mr. MacLanders always knew he was going to retire, he just didn’t tell anybody until after the Court made its decision.
Once the original Court rejected Mr. MacLanders application for variation of the spousal support order, Mr. MacLanders appealed to the BC Court of Appeals, who then confirmed the lower Court’s decision as a matter of law. The Court of Appeals noted as follows:
[18] I find no error in Truscott J.’s analysis of this issue. A material change of circumstances is a threshold condition that must be established by an applicant before a court may vary a support order. Section 17(4.1) of the Divorce Act provides.
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 … and, in making the variation order, the court shall take that change into consideration.
[19] In Willick v. Willick, [1994] 3 S.C.R. 670, the Supreme Court provided guidance for the interpretation of this provision, where Mr. Justice Sopinka, for the majority, wrote at 688:
In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances. This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation. …
[21] Here, the husband knew going into the summary trial that he was going to retire soon but chose not to disclose that material fact to the trial judge. Therefore, the change in his circumstances was known and foreseeable by him at the time of the Divorce Order. Had the husband been forthright about his actual circumstances at trial or before the Divorce Order was entered, it may well have resulted in a different order being made.
[23] In these circumstances, the Willick test precludes the husband from relying on his retirement as a material change in circumstances to support an order rescinding his spousal support obligation. The husband had made plans for his retirement before the summary trial hearing; it was his decision alone not to disclose his actual circumstances before Myers J. when that event was known, foreseeable, and specifically within his contemplation at the time. I would not accede to this ground of appeal.
The Court of Appeal also rejected Mr. MacLanders’ application for a finding that he was unable to return to work, for health reasons, in order to meet his spousal support obligation. This decision was based both in a lack of sufficiency in the evidence presented by Mr. MacLanders and also because it was, once again, withheld by Mr. MacLanders at each stage of the trial. The Court noted that:
[24] In addition to arguing that his retirement after the Divorce Order constituted a material change in circumstances, the husband also submitted before Truscott J. that his deteriorating health, which he deposed had also pre-dated the Divorce Order, rendered him unable to work and thereby constituted a material change in circumstances. However, the only evidence he produced in support of that submission was:
(1) his statement that, but for the parties financial circumstances, he would have retired when he was 50 years old because of constant pain and discomfort he experienced in his knees and back from sheet metal work; and
(2) Dr. Ecclestone’s clinical record of July 18, 2011, reproduced in paragraph 11 above. It is apparent that Truscott J. found this evidence insufficient to establish a material change in circumstances.
[25] The husband now seeks to admit fresh evidence to this Court in support of his challenge to Truscott J.’s finding that he is able to continue working and contributing to the wife’s support. The admissibility of fresh evidence is governed by the four-part Palmer test (at 775): (i) the evidence could not have been obtained by due diligence; (ii) the evidence must be credible (i.e., reasonably capable of belief); (iii) the evidence must be relevant (bears on a decisive or potentially decisive issue at trial); and (iv) the evidence, if believed, could reasonably be expected, along with the other evidence, to have affected the result. The standard for admissibility of fresh evidence on appeal is a stringent one as was noted by Madam Justice Ryan, writing for the Court, in Scott v. Scott, 2006 BCCA 504 at para. 21:
… the nature of an appeal is to examine the record and determine whether there has been an error of law or a palpable error of fact: it is not a continuation of a trial at a different stage. Thus, generally speaking, the need for certainty and finality leaves no room for the admission of fresh evidence on appeal: [Citation omitted.]
[26] In my view, the husband’s application fails, at the very least, on the first Palmer factor. I am also not persuaded that the application to adduce what appears to be largely new evidence acquired since the October 27, 2011 order is not merely an attempt by the husband to buttress his submissions before Truscott J. after the fact with evidence he could have obtained but failed to produce at the time of the variation application.
Thus, both as a matter of law, and in Equity, Mr. MacLanders application fails. A party before the Court must disclose, at the very least, to their own lawyer, all of the facts that they expect to rely upon. Further, this information must be disclosed to their lawyer in a timely and forthright manner if they expect their lawyer to be able to make proper submission to the Court and also if the Court is going to be able to take these factors into account when making its decision.
Tardiness and lack of diligence on the part of Mr. MacLanders means that he will now continue to pay, for an indefinite period of time, or at least until there truly is a material change of circumstances. To avoid this nasty result we suggest you contact us to get advice on how to maximize your chances of success in a support case.We can be reached toll free across BC at 1 877 602 9900.
