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Reduce your spousal support with our Calgary Spousal Support Reduction lawyers. MacLean Family Law deals with cases where a material change in one or both parties financial situations change in a significant way since an order for spousal support was originally made. If a material change is proven support can be reduced in amount and in duration or even cancelled entirely. In today’s blog founder Lorne N MacLean, QC explains how the test to vary spousal support works. MacLean Law scored a stellar 95/100 as the 2018 Champions yet again as a 4 time winner of Top Choice Awards best family law firm. Our lawyers have offices in Vancouver, Calgary, Surrey, Kelowna, Fort St John and Richmond BC.

To reduce spousal support, call Calgary Spousal Support Reduction Lawyers at 403 444 5503

MacLean Law’s Top Rated Calgary Spousal Support Reduction lawyers take the time today to explain an important new BC Court of Appeal decision on Calgary Spousal Support Reduction. In the case of Klann v Klann the appellant WIFE challenged a chambers judge’s order varying the amount of spousal support payable by the respondent under a consent order. She argued that the HUSBAND did not establish a material change in circumstances. She argued the chambers judge made a mistake in varying the quantum of support while not adjusting its duration which she said resulted in a loss to her and windfall to her ex-spouse.

Appeal Upholds Calgary Spousal Support Reduction

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The BC Court of Appeal rejected the WIFE’s appeal and held that the chambers judge committed no error in finding that a material change in circumstances occurred based on the uncontested affidavit evidence of the respondent and others. The judge considered the relevant principles under the Divorce Act and did not err in limiting the variation to amount of support, the only factor impacted by the material change. The decision is an important one on the issue of Calgary Spousal Support Reduction because the BC Court of Appeal provided key guidance that there is no automatic requirement that support must be lengthened if its quantum is reduced.

Calgary Spousal Support Reduction – Why Does The Court Of Appeal Decision on Cases Matter?

The BC Court of Appeal summarized how a variation od spousal support case must be approached:

[58]         Section 17 of the Divorce Act governs an application to vary spousal support:

17 (1)  A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a)  a support order or any provision thereof on application by either or both former spouses;

(4.1)  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 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.

(7)  A variation order varying a spousal support order should

(a)  recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;

(b)  apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c)  relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and

(d)  in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

Calgary Spousal Support Reduction – Correct Legal Test

[59]         It is common ground the judge identified the correct legal test for the variation of support orders as set out in L.M.P. when he said the following:

[45]      The first question to address is whether there has been a material change in the condition, means, needs or circumstances of the applicant.

[46]      From [L.M.P.], the court stated this with respect to a s. 17 application:

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).

[47]      Recently Madam Justice Kirkpatrick in Moazzen-Ahmadi v Ahmadi-Far, 2016 BCCA 503 stated in regard to material change:

[14]      The seminal decision is Willick v. Willick, [1994] 3 SCR 670 where Mr. Justice Sopinka stated 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.

[15]      Thus, the test, at its core, requires subjective knowledge of the change.

Husband In Dispute With Brother And Selling Company Was Unexpected

[48]      Nothing has been brought before me to indicate directly that on a subjective basis the knowledge that Mr. Klann would be involved in a dispute with his brother which would lead to Mr. Klann selling his interest and which would lead to the loss of his job and entitlement to dividends.

[62]         The 2011 order contemplates final termination of spousal support on June 1, 2020, which date represents “the maximum duration for the payment of Spousal Support to [Ms. Jasmer] pursuant to the Spousal Support Advisory Guidelines”.

 …Supreme Court of Canada… Justices Abella and Rothstein, for the majority, said this:

[47]          If the s. 17 threshold for variation of a spousal support order has been met, a court must determine what variation to the order needs to be made in light of the change in circumstances.  The court then takes into account the material change, and should limit itself to making only the variation justified by that change.  As Justice L’Heureux-Dubé, concurring in Willick, observed: “A variation under the Act is neither an appeal of the original order nor a de novo hearing” (p. 739).  As earlier stated, as Bastarache and Arbour JJ. said in Miglin, “judges making variation orders under s. 17 limit themselves to making the appropriate variation, but do not weigh all the factors to make a fresh order unrelated to the existing one, unless the circumstances require the rescission, rather than a mere variation of the order” (para. 62).

[69]         As Mr. Klann says, Ms. Jasmer is wrong to treat quantum and duration of spousal support as interdependent. While they are conceptually linked under the SSAG, there is no support for Ms. Jasmer’s argument that a decrease in quantum must automatically lead to an increase in duration. There is no sliding scale requirement. Rather, the correct approach is to adjust spousal support having regard to the respective factors underlying the amount and duration calculations. In this case, the material change in circumstances, namely Mr. Klann’s sale of his interest in Phoenix and the corresponding loss of dividend income, informed only the amount. The judge did not err in adjusting the amount of spousal support while maintaining the duration contemplated in the 2011 consent order.

[70]         I agree with this submission in Mr. Klann’s factum:

75.       The factors underlying amount and duration of support are different. In the with child support, shared parenting formula, the amount of support is calculated based on the net incomes of both parents, with a goal of ensuring that the children of the marriage live in households with similar net disposable income. Duration, on the other hand, is calculated based on the length of marriage and the length of the remaining child-rearing period.

            See     SSAG, ss. 8.3, 8.5 & 8.6

76.       The chambers judge’s decision limited his variation to amount because the material change in circumstances went to the net disposable income of the Husband’s household. There was no change to the length of marriage nor the child-rearing period. In so limiting the variation, the chambers judge refrained from approaching the parties’ circumstances denovo, instead making only a variation justified by the material change.

In the end the Court of Appeal said a reduction in the amount of support was justified based on the HUSBAND’s loss of income while the duration remained the same.

How can I reduce spousal support? Call Calgary Spousal Support Reduction Lawyers at 403 444 5503

The area is obviously complicated and thousands of dollars are often at stake related to the financial well being of both parties. Call our highly rated Calgary Spousal Support Reduction early on to help you obtain a just solution toll free across BC and in Calgary at 1-877-602-9900.

 

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