Lorne MacLean, QC set the law on what a review of spousal support is in Canada in the leading case of Leskun v. Leskun of our Supreme Court of Canada. There is a significant difference in the onus an applicant faces when a review of spousal support is sought as compared to a variation of spousal support. As high net worth spousal support lawyers, we use the review of spousal support as a tool to help us settle cases and leave the troublesome issues of self sufficiency and the duration and amount of support to be decided at a later date. Contact us today to ensure the right test is negotiated when trying to settle your spousal support case.
Review of Spousal Support A Key Tool to Settle Cases
While the Supreme Court of Canada said spousal support reviews should be rarely used, fortunately, courts across Canada have ignored this strict regime and continued to use the very useful tool of review of spousal support. What is a review of spousal support? A new BC Court of Appeal case explains it.
New BC Appeal Decision Contrasts A Review From a Variation Application
In the 2016 BC Court of Appeal decision of Toth v. Toth, a very tidy summary by the Court was delivered that explains in simple terms how a review of spousal support works compared to the higher threshold needed to change a spousal support order:
Summary:
The appellant appeals the dismissal of her application for a review of an order for spousal support. Appeal dismissed. The parties entered a final separation agreement that was substantially replicated in a consent order in 2009. The chambers judge made no error in finding that, properly interpreted, the agreement and order did not provide for a review of support under s. 15.2 of the Divorce Act. The appellant must instead apply for a variation of support under s. 17(4.1).
[11] The review of the spousal support order sought by the appellant is distinct from a variation of spousal support under s. 17(4.1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp). Before the court may vary an order for spousal support under that provision, the applicant must establish that there has been a material change “in the condition, means, needs or other circumstances of either former spouse” since the last order for support was made. By contrast, the right to a review of spousal support by the court emanates from a term in an earlier agreement or order that permits a party to seek a change in support without having to establish a material change in circumstances. Such a review takes place under s. 15.2 of the Divorce Act and so permits a fresh look at all factors relevant to support: Jordan v. Jordan, 2011 BCCA 518 at paras. 28-34, Scott v. Scott, 2008 BCCA 457 at para. 24.
[12] The principles governing review orders were summarized as follows by the Supreme Court in Leskun at paras. 36-39. Such orders have a “useful but very limited role” in cases in which “genuine and material uncertainty” at the time of the original order or agreement indicates that the economic circumstances of one or both parties are not yet stable and further changes are anticipated. In such cases, a term permitting the parties to return to court for a review of spousal support may be justified. Courts should exercise caution, however, in making such orders, as a permanent resolution of entitlement to support is preferable. If a provision for review is made, it should clearly and narrowly identify the issue for review to avoid full re-argument by the parties.
Our highly rated senior family law lawyers headed by Lorne MacLean, QC can assist you in these high stakes review of spousal support cases. Call us across BC 1-877-602-9900.
