Cases involving Changing Varying Spousal Support payments are brought frequently. Spouses may have changes in their incomes, their marital status, their health, and their net worth. But what is the test and who bears the onus to succeed in a BC Changing Varying Spousal Support application? The new BC Court of Appeal case in Pawluk dismissed a second try by a husband to reduce a Consent ordered amount of $4500 per month on the basis he remained unemployed. The Court took the opportunity to provide a nice summary of the rules used in a Changing Varying Spousal Support dispute.
How Do You Win A Changing Varying Spousal Support Dispute?
The ex-husband’s application to cancel or reduce spousal support was dismissed on the basis that no material change in his unemployment had occurred since the amount was originally set. In short, because the original amount was already based on his unemployment and reduced job prospects, the fact he was still unemployed was not substantially different than what the original order was based upon. In today’s blog Lorne MacLean, QC gives you the rules on what you need to shop to win a spousal support variation application.
Changing Varying Spousal Support Rules Call 1 877 602 9900
In determining whether the conditions for a BC or Calgary spousal support variation exist, a court must be satisfied that there has been a change in circumstances since the making of the prior order. Before Changing Varying Spousal Support L.M.P. v. L.S., 2011 SCC 64 says that a two-step test applies. The first step is to determine whether the conditions for variation exist. The second step is to determine what variation ought to be made in light of the change in circumstances:
STEP 1
- the onus of establishing such a change rests on the party seeking the variation;
- the change must be a “material one” – one that “if known at the time, would likely have resulted in different terms”;
- the “focus of the analysis is on the prior order and the circumstances in which it was made”;
- the test is “whether any given change would likely have resulted in different terms” to the order;
- what amounts to a material change will depend on the actual circumstances of the parties at the time of the order; and
- the material change must generally have some degree of continuity and not merely be a temporary set of circumstances.
STEP 2
If the first step is established, then the court must move on to determine what variation ought to be made. The court then reviews the new conditions, means, and circumstances of the parties and the history of the past relationship to decide entitlement and amount of spousal support.
In the recent decision of Sandy v. Sandy, 2018 BCCA 182, Madam Justice Fenlon, writing for herself and the two other members of the Court, said this at para. 58:
Variation of a pre-existing order under s. 17 [of the Divorce Act] requires an applicant to prove a material change in circumstances. In determining whether the change is “material”, the question is whether the change, if known, would likely have resulted in different terms. If the change was anticipated at the relevant time, it cannot be relied on as the basis for variation [authorities cited]. What amounts to a material change will depend on the actual circumstances of the parties at the time the order was made [authority cited].
Key Takeaway From Senior Family Lawyers Call 1 877 602 9900
Changing Varying Spousal Support cases require a substantial “material” change in order to succeed. Even a material change that is only temporary will not lead to success. For more free information on this topic read this SSAG summary. Call our Changing Varying Spousal Support lawyers to get a tailor-made strategy to your own special circumstances.
