Vancouver Calgary Varying Increased Spousal Support Lawyers deal with cases where someone wants to increase the amount of spousal and child support. The test to succeed in changing spousal support for a material change is based on what the parties actually contemplated at the time the order was entered by agreement, not what one party knew or actually foresaw. This test is a tricky one to interpret, so having skilled Vancouver Calgary Varying Increased Spousal Support Lawyers such as a lawyer from MacLean Law on your side is important. The test for obtaining proper support to begin with and for varying support in these cases is even more complex when the court has to determine what the income of a self employed person is.
Don’t Delay In Bringing On Your Support Variation Application!
A recent BC Court Of Appeal case points out once again that delay is often fatal to getting the right amount of support started promptly. In this new BC Court of Appeal case a husband’s income increased after a consent order made years earlier and the Chambers judge hearing the argument by the wife’s Vancouver Calgary Varying Increased Spousal Support Lawyers granted an increase all the way back to the date of the original lower spousal support order some 7 years earlier.
The disappointed ex-husband appealed saying “a deal is a deal” and no change in the amount should occur and any change should not occur retroactively at all let alone for 7 full years!
Vancouver Calgary Varying Increased Spousal Support Lawyers
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What is the test to vary a prior court order made by consent?
In Morey v Morey the BC Court of Appeal reviewed the test for variation of spousal support:
[24] The central argument made by Mr. Morey is that the consent order was a compromise based on an understanding by both parties that Mr. Morey’s income was highly variable. He argues that the change in income was not “a material change in the circumstances of an unforeseen nature since the making of the original order” within the meaning of Zacharias v. Zacharias, 2015 BCCA 376.
[25]The essence of the argument is contained in the following submission from the appellant’s factum:
The judgment in appeal upends the compromise accepted by Respondent, awards her $119,252 more than the Appellant was prepared to give her, and she was prepared to, and did, accept, on the basis that the Appellant’s fortunes were better than both parties agreed to assume they would be.
Vancouver Calgary Varying Increased Spousal Support Lawyers – Consent Orders Can Be Varied
The husband failed in his argument saying a Consent Order was more immune from variation than an Order made on a disputed basis:
[26]The fact that the judgment under appeal upends the order consented to by both parties is not in and of itself a basis for reversal. The chambers judge recognized that the assessment of change of circumstances is not different for consent orders that are based on agreement of the parties than for orders imposed on the parties. He cited L.M.P. v. L.S., 2011 SCC 64 for this proposition:
[46]The examination of the change in circumstances is exactly the same for an order that does not incorporate a prior spousal support agreement as for one that does.
A general statement that the agreement must be accorded ‘significant weight’, even though its implications in a concrete case are unclear, in effect raises the threshold necessary to establish a “material change” under s. 17 when there is an agreement, and emphasizes legal certainty and finality at the expense of the statutory requirements of s. 7. Such a result is reminiscent of the “clean break” approach of the Pelech trilogy, rejected in Moge and Miglin because it was held to be inappropriate in the context of the current Divorce Act…
In short, once a material change in circumstances has been established, variation order should “properly reflect the objectives set out in s.17(7),… (take) account of the material changes in circumstances, and consider the existence of the separation agreement and its terms as relevant factor” (Hickey, at para. 27). A court should limit itself to making the variation which is appropriate in light of the change. The task should not be approached as if it were an initial application for support under s. 15.2 of the Divorce Act.
[27] The chambers judge also relied on this Court’s judgment in Dedes v. Dedes, 2015 BCCA 194 for the proposition that the test for material change is based on what the parties actually contemplated at the time the order was entered by agreement, not what one party knew or actually foresaw.
Vancouver Calgary Varying Increased Spousal Support Lawyers Apply Law To Facts
[28] The judge summarized the effect of these authorities in this way:
[88]Accordingly, in my view, the issue is whether what ensued in the wake of the consent order in the present case was within the contemplation of the parties when they made it. In other words, did the degree of inflation of the respondent’s income and the degree of deflation of the claimant’s income create a discrepancy which went beyond what the parties actually contemplated when they consented to a spousal support order, limited in duration, and based on notional incomes of $83,000 for the respondent and $48,000 for the claimant.
[29] I can see no error in the chambers judge’s appreciation of the legal framework for considering the variation application. The question then becomes whether the chambers judge committed an error in principle in his application of these tests to the case at bar.
[30] In this Court Mr. Morey challenges the conclusion of the chambers judge that what was in the parties’ contemplation was the likelihood that Mr. Morey’s income would be negatively affected by the economic downturn. However, this was an assessment based on the evidence before the chambers judge and is entitled to deference in this Court.
Vancouver Calgary Varying Increased Spousal Support Lawyers – What Is Test To Win An Appeal of A Support Order?
The test to win an appeal is a high threshold to prevent disgruntled litigants from having “a redo”. The husband di not win on blocking the increase in spousal support but he did succeed in not having the increase start retroactively 7 years before the wife applied to increase support.
[31]While an assessment of the evidence is always subject to a deferential review in this Court, deference is particularly important in relation to support orders, as explained by the Supreme Court of Canada in Hickey v. Hickey, [1999] 2 S.C.R. 518:
[12]There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently.
[32]In this case, I am not persuaded that the chambers judge made an error in law or in principle, and applying a deferential standard of review to the judge’s assessment of the evidence, I can see no reversible error in the judge’s assessment of the change of circumstances. I would not give effect to this ground of appeal.
Call our Vancouver Calgary Varying Increased Spousal Support Lawyers at 1-877-602-9900 today to correct an inappropriate support amount or you may lose thousands.
