The BC spousal support variation team at MacLean Law appreciates the very concise summary presented by Mr. Justice Verhoeven in Lamont v. Johnson, 2016 BCSC 366 concerning the test that must be met for a successful BC spousal support variation application. Our lawyers both apply for and oppose BC spousal support variation applications from all of our 4 offices located across BC in Surrey, Vancouver, Fort St John and Kelowna.
Experience Counts In A BC Spousal Support Variation Case
It is important that a spouse who is seeking or defending a BC spousal support variation case understands the rules that re to be applied. Our highly experienced lawyers can provide key guidance in the area related to BC spousal support variation and our team can meet with you and explore your options on an immediate basis.
BC Spousal Support Variation Law Summarized
BC spousal support variation cases apply a test that has been refined over the years by the Supreme Court of Canada and our highest court in BC the BC Court of Appeal. Mr. Justice Verhoeven summarized the extracts of the law and then summarized the law to succeed on a BC spousal support variation in plain language after going through it:
[13] At this juncture there is no meaningful distinction between entitlement and quantum. Clearly, an application to vary spousal support can result in termination of spousal support. No authority is needed for that proposition, but a few examples where that has occurred are: Eichen v. Eichen, 2012 BCCA 32; Price v. Price, 2010 BCCA 452; Jens v. Jens, 2008 BCCA 392; Aspe v. Aspe, 2010 BCCA 508; Code v. Code, [1998] B.C.J. No. 2456 (QL).
[14] Voith J. discussed the relevant principles to be applied in an application to vary spousal support in Bradley v. Bradley, 2012 BCSC 2191, as follows:
[14] A number of legal propositions are also relevant to the instant application. The court is to proceed on the basis that the original order was correct; Haigh v. Haigh (1997), 41 B.C.L.R. (3d) 139 (C.A.). As stated above, Mr. Bradley does not contest the validity of the Consent Order.
[15] The onus to establish that a material change has occurred rests with Mr. Bradley. This requires Mr. Bradley to show not only that a change occurred, but also that the change warrants judicial intervention; Walters v. Walters, 2011 BCCA 331 at paras. 48-49; Oakley v. Oakley (1985), 48 R.F.L. (2d) 307 at 313 (B.C.C.A.).
[16] Some of these principles were summarized and further developed in Murphy v. Murphy, 2000 BCSC 974, where Martinson J. said:
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[18] The Supreme Court of Canada has said that the change must be a material change in circumstances, meaning a change that if known at the time of the original order, would likely have resulted in different terms: G. (L.) v. B. (G.), [19995] 3 S.C.R. 370. If the matter was known at the time of the order sought to be varied, it cannot be used as a basis for variation.
[19] The British Columbia Court of Appeal has said that a court will vary a support order only where it finds a change that is substantial, unforeseen and of a continuing nature: T. (T.L.A.) v. T. (W.W.), 26 B.C.L.R. (3d) 319 at 33. The Supreme Court of Canada has more recently said that the change cannot be trivial or insignificant: Hickey v. Hickey, [1999] S.C.J. 9 at para. 20. A change must therefore be one that is significant, unforeseen, and of a continuing nature. Otherwise, parties cannot properly organize their financial affairs and plan for the future.
[17] Recently in L.M.P. v. L.S., 2011 SCC 64, Abella and Rothstein J.J., for the majority, reasserted some of these propositions and said:
[29] In determining whether the conditions for variation exist, the threshold that must be met before a court may vary a prior spousal support order is articulated in s. 17(4.1). A court must consider whether there has been a change in the conditions, means, needs or other circumstances of either former spouse since the making of the spousal support order.
[30] In our view, the proper approach under s. 17 to the variation of existing orders is found in Willick v. Willick, [1994] 3 S.C.R. 670, and G. (L.) v. B. (G.), [1995] 3 S.C.R. 370. Like the order at issue in this case, Willick (dealing with child support) and G. (L.) (dealing with spousal support) involved court orders which had incorporated provisions of separation agreements. Both cases were decided under s. 17(4) of the Divorce Act, the predecessor provision to s. 17(4.1).
[31] Willick described the proper analysis as requiring a court to “determine first, whether the conditions for variation exist and if they do exist what variation of the existing order ought to be made in light of the change in circumstances” (p. 688). In determining whether the conditions for variation exist, the court must be satisfied that there has been a change of circumstance since the making of the prior order or variation. The onus is on the party seeking a variation to establish such a change.
[32] That “change of circumstances”, the majority of the Court concluded in Willick, had to be a “material” one, meaning a change that, “if known at the time, would likely have resulted in different terms” (p. 688). G. (L.) confirmed that this threshold also applied to spousal support variations.
[33] The focus of the analysis is on the prior order and the circumstances in which it was made. Willick clarifies that a court ought not to consider the correctness of that order, nor is it to be departed from lightly (p. 687). The test is whether any given change “would likely have resulted in different terms” to the order. It is presumed that the judge who granted the initial order knew and applied the law, and that, accordingly, the prior support order met the objectives set out in s. 15.2(6). In this way, the Willick approach to variation applications requires appropriate deference to the terms of the prior order, whether or not that order incorporates an agreement.
[34 The decisions in Willick and G. (L.) also make it clear that what amounts to a material change will depend on the actual circumstances of the parties at the time of the order.
[35] In general, a material change must have some degree of continuity, and not merely be a temporary set of circumstances (see Marinangeli v. Marinangeli (2003), 66 O.R. (3d) 40, at para. 49). Certain other factors can assist a court in determining whether a particular change is material. The subsequent conduct of the parties, for example, may provide indications as to whether they considered a particular change to be material (see MacPherson J.A., dissenting in part, in P. (S.) v. P. (R.), 2011 ONCA 336, 332 D.L.R. (4th) 385, at paras. 54 and 63).
[18] Finally, I recognize that in Walters the court emphasized the importance, in a variation application, of a judge considering both the objectives of s.17(7) and the parties’ means, needs, and other circumstances under s. 17(4.1) of the Divorce Act.
Here Is A Great Checklist For A BC Spousal Support Variation
Here is a handy checklist for a BC spousal support variation application:
[15] In summary, the principles to be applied on an application to vary spousal support are as follows:
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The court is to proceed on the basis that the original order was correct. It must be presumed that the prior support order met the objectives set out in s. 15.2(6) of the DA. Appropriate deference is required to the terms of the prior order, whether or not that order incorporates an agreement;
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The court must consider whether there has been a change in the conditions, means, needs or other circumstances of either former spouse since the making of the spousal support order;
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The applicant has the onus to establish that a material change in circumstances has occurred and that the change warrants judicial intervention;
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A material change in circumstances means a change that if known at the time of the original order would likely have resulted in different terms;
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If the matter was known at the time of the order sought to be varied, it cannot be used as a basis for variation;
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In addition to being unforeseen, the change must be at least significant, or substantial, and of a continuing nature;
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In varying the prior order, the court must consider both the objectives of s.17(7) and the parties’ means, needs, and other circumstances under s. 17(4.1) of the DA.
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