MacLean Law’s Surrey spousal support remarriage lawyers explain the principles on this thorny issue as set out in the recent BC Court of Appeal case in Morigeau v. Moorey.
The court reviewed the law on Surrey spousal support remarriage cases and dismissed an appeal from the husband who was trying to reduce and cancel his Surrey spousal support payments. The case points out that some advance planning to deal with what happens in a Surrey spousal support remarriage case might provide a mechanism for what happens to spousal support upon re-partnering and remarriage. Pitfalls could include mistakenly agreeing that spousal support ends if a new relationship is entered into. But if this new relationship ends quickly and the spousal support from the first has been terminated disaster can result. Call our highly respected Surrey family law lawyers to ensure all aspects are covered in your Surrey spousal support case.
Here is the court’s official summary on the Surrey Spousal support remarriage decision:
Appeal from an order dismissing an application to vary or cancel a spousal support obligation pursuant to s. 17 of the Divorce Act. The respondent, at the time of the order, had commenced a new relationship. In 2013 the appellant applied to vary the order, claiming that there had been a material change in circumstances due to the respondent beginning to cohabite with her partner and the disparity in the parties’ income having decreased since the order. Held: appeal dismissed. The respondent cohabiting with her partner did not constitute a material change in circumstances because, among other things, the cohabitation was reasonably foreseeable and, in any event, the cohabitation was not relevant to the entitlement to support because the spousal support order was primarily compensatory in nature. The judge did not otherwise fail to consider the other additional factors since, having found that there was no material change, he was not required to consider s. 17(7) of the Divorce Act.
Surrey spousal support remarriage cases involve a consideration of several factors as pointed out by the court in the Court’s decision:
[12] The judge then reviewed the cases tendered by Mr. Moorey in support of his application to vary based on “re-partnering”: Range v. Range (1995), 14 R.F.L. (4th) 11 (B.C.S.C.); Kelly v. Kelly, 2007 BCSC 227; Rimmer v. Adshead, 2012 SKQB 500; Redpath v. Redpath, 2008 BCSC 68; C.L.M. v. R.A.M., 2008 BCSC 217; Rakose v. Rakose, 2008 BCSC 1165; Barton v. Ophus, 2009 BCSC 858; and Lee v. Lee, 2013 BCSC 1227.
[13] The judge then, correctly in my opinion, summarized the principles derived from the authorities as follows:
[26] 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:
- 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;
- 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;
- 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;
- 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
- 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.
- The circumstances of the re-partnering may have a bearing on the analysis: Rakose v. Rakose, Redpath v. Redpath.
If you have a difficult Surrey spousal support remarriage case and you need advice both in anticipating a change is support for remarriage or repartnering or if you think a change in support is justified in your Surrey spousal support remarriage case call us at 604-576-5400. MacLean Law is BC’s largest family law firm and we have offices across BC in downtown Vancouver, South Surrey, Kelowna and Fort St John, BC.
