Vancouver Spousal Support Termination Variation Lawyers at award winning MacLean Law negotiate, mediate, arbitrate and litigate, interim spousal support, final spousal support, variations of spousal support, security for spousal support and lump sum spousal support. Recently, there has been more of an emphasis on settling matters through negotiation and reducing the settlement into a separation agreement or Consent Order. In today’s blog, Fraser MacLean, articled student to our Vancouver Spousal Support Termination Variation Lawyers, explains what the rules are when someone wants to change the deal they reached.
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What is a spousal support payment?
Vancouver spousal support payments, formerly referred to as alimony payments, are payments made by one spouse (the payor), to the other spouse (the recipient), to assist with their day-to-day living expenses or to compensate for any adverse financial choices or sacrifices made during the relationship. Click here to learn more on how spousal support is awarded initially.
Our Vancouver Spousal Support Termination Variation Lawyers explain to our family law clients that:
Vancouver spousal support is mandated by two different pieces of legislation the Divorce Act (“DA”) and the Family Law Act (“FLA”). S. 15.2(4) of the DA and s. 162 of the FLA set out the factors for spousal support orders which include
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during the period they lived together; and
(c) an agreement between the spouses, or an order, relating to support of either spouse.
Vancouver Spousal Support Termination Variation Lawyers Explain The Miglin Rules
Parties may vary spousal support orders by the consent of both parties or may apply to the court to vary a spousal support order. In 2003, the Supreme Court of Canada released judgment in Miglin v Miglin regarding separation agreements. The Court stated that when considering whether to uphold a support agreement, there is a two stage analysis:
Stage One -The court must look at the circumstances in which the agreement was negotiated and executed, the duration of the negotiations, and if there was any oppression, pressure, or other vulnerabilities faced by one or both parties. The court must also look at the substance of the agreement and whether or not the agreement takes into account the objectives and factors set out in the DA.
Stage Two- In the second stage of the analysis the court must assess whether the or not the agreement is still in compliance with the factors and objectives in the DA, to the extend of which it still reflects the intentions of the parties. In this stage the court will look at whether the agreement should be set aside or given little weight due to changes in circumstances of the parties since the agreement. In Miglin the Court stated “It is only where the current circumstances represent a significant departure from the range of reasonable outcomes anticipated by the parties, in a manner that puts them at odds with the objectives of the Act, that the court may be persuaded to give the agreement little weight”.
The B.C Court of Appeal recently handed down its decision in the case Sandy v. Sandy in which the husband appealed orders relating to spousal and child support obligations. The parties had previously settled financial issues between them by way of a separation agreement in which the husband paid spousal support via a lump sum payment of $315,000, which was later raised to $411,000 following a CRA reassessment. At the time of the agreement the husband’s agreed income was $600,000 but there was no evidence put forth on the subsequent variation application by the wife of what if any consideration was given if his future income increased. Mr. Sandy’s income increased after the agreement was signed, and by time of the variation application he was earning over $800,000 in 2010 and over $900,000 in 2014.
Vancouver Spousal Support Termination Variation Section 15.2 Not Section 17 of the Divorce Act Applies
Ms. Sandy sought to change the spousal support due to her health and increases in Mr. Sandy’s income. The Court of Appeal found that when there is no order to vary you do not apply under s. 17 of the DA; instead Ms. Sandy’s application should have been made under s. 15.2. Regardless, the court found that Ms. Sandy did not provide enough evidence that she did not expect her ex-husband’s income would increase and since she already had health issues this was not a material change in circumstances. The Court provided the following:
[71] In my view the message to be drawn from Miglin and L.M.P. is that certainty and finality cannot be achieved by drawing orders that dismiss claims for support. Nor do embellishments such as “as if after trial” or references to “future claims” assist. Rather, parties wishing to achieve finality should set out in an order or agreement the potential changes in circumstances they have considered in reaching their agreement, and clearly identify the changes they agree will, or will not, warrant reconsideration of the terms on which they have resolved their support obligations.”
Why Should I Care About Sandy v. Sandy of the BC Court of Appeal?
Fraser MacLean of our team of Vancouver Spousal Support Termination Variation Lawyers says, the important takeaway from the Court of Appeal in Sandy is that Vancouver and Surrey separation agreements or consent orders for support that are negotiated fairly will be respected by the courts. It is critical if you are seeking finality Vancouver or Surrey spousal support that the order or agreement correctly considers or identifies future changes that will or will not entitle a spouse to more support.
Standard CLEBC clauses that seek to prevent a reopening of any final deal are in this vein:
This is a final agreement about Spousal Support and Neither party may apply for a variation of Spousal Support/Spousal Support regardless of any change in the circumstances of the parties, whether foreseen or unforeseen, radical, catastrophic, causally connected to the marriage, or otherwise, including a change resulting from increases or decreases in income or asset values, increasing age or declining health.
If you have any questions speak to one of our highly experienced Vancouver and Surrey Family Lawyers today 604-602-9000
