Our Vancouver family lawyers get asked the question: How Do I Vary BC Interim Support? a lot. In most cases, Courts have laid down a principle that interim support orders are rough and ready justice and the matter will be fully dealt with at trial. However, a trial judge has the power to retroactively vary the Interim spousal or child support Order. Lorne MacLean, QC obtained a record-breaking $85,000 plus a month combined spousal and child support order, so he knows how support works.
How Do I Vary BC Interim Support?
A recent BC Court of Appeal estate case of Kumagai answered what the principles to varying an interim BC support order are. Simply put to succeed on an application to increase, decrease or cancel an interim support order payment entirely you must show:
(1) a significant and material change in circumstances of either party since the interim order;
(2) evidence of a substantial nature now available that was not available when the interim order was made; or
(3) evidence of a lack of financial disclosure by either party that was discovered after the interim order was made.
Here is what our highest Court said in a nutshell:
[55] The Estate also asked the judge to reconsider and clarify his rejection of its request that the October 2, 2013 interim order for increased spousal support, this one against the Estate, in the monthly amount of $15,000, be rescinded because no consideration had been given to the change from the tax-free status of MHP’s income to a tax rate of 45% after Mr. Campbell’s death, leaving it with a reduced after-tax income of $293,367. Ms. Kumagai’s position was that, in the absence of an appeal of that interim order, the Estate could not now advance its submission. The judge agreed with Ms. Kumagai that the second interim order should not be adjusted. He held that while s. 167(2) of the FLA authorized a retroactive variation of an interim order, that decision was subject to the Estate meeting the following conditions: (1) a change in circumstances of either party since the interim order; (2) evidence of a substantial nature now available that was not available when the interim order was made; or (3) evidence of a lack of financial disclosure by either party that was discovered after the interim order was made. The judge found no evidence that established any of these conditions.
[97] On reconsideration of whether the interim spousal support order could survive the death of Mr. Campbell, the judge found that the object and intention of the Legislature was clear and to not give it effect would result in an absurdity (at paras. 9–21). I agree. In my respectful view, the judge correctly applied the well-known principles of statutory interpretation set out in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 and reiterated in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, in determining that the legislative intent of these provisions was to provide a mechanism for the ongoing payment of spousal and child support upon the death of the payor spouse based on the factors listed in s. 171(1). The Legislature has clearly and expressly changed the common law principles with respect to support under the FLA. I find no error in the judge’s reconsideration of this issue.
