Variation of Support: “But Your Honour My Circumstances Have Changed”

Things change. Just because you resolved the issues that arose upon the breakdown of a previous relationship by way of a Separation Agreement or a court decision does not mean that you’ve got a “done deal.”

What if a support paying ex-husband lost his job, a support recipient wife won a lottery, a support paying ex-husband faces retirement in a year or a support payor re-married and his new wife just gave birth to a baby boy? Should and can the support payments continue, despite these events? Many people, including lawyers and judges have differing views.

Let’s consider the situation where a Judge made an Order at the conclusion of a divorce proceeding. Section 17(4) of the Divorce Act provides the Court with the power to change the amount of the support Order, but before it changes the Order, the Court must be satisfied that there has been a change in the condition, means, needs or other circumstances of either former spouses or of any child of the marriage for whom support is or was sought since the making of the support order.

The Supreme Court of Canada, in Willick v Willick, interpreted the section 17(4). Sopinka J. stated as follows. “In deciding whether the conditions for a variation exist, it is common ground that the change must be a material change of circumstances. This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as a basis for variation”.

The Supreme Court next commented on section 17(4) in L.G. v. G.B. There, Madam Justice L’Heureux-Dubé adopted the comments of Justice Sopinka in Willick and further commented as follows.

“To begin with, “sufficiency” of the “change” must be defined in terms of the parties’ overall financial situation. Moreover, the fact that a change was objectively foreseeable does not necessarily mean that it was contemplated by the parties.”

Therefore the issue to be decided in a divorce variation application is as follows: had the parties known what we know now (i.e. the husband would lose his job), would the Judge of first instance have made a different order?

Consider then what would happen if a support paying ex-husband lost his job five years after the Court ordered him to pay support? Similarly what if a support recipient wife won a lottery? Would she have needed support back then? These are the easy questions, given the Court’s interpretation of the Divorce Act.

However, what if the support paying ex-husband faces retirement in a year? What if a support payor re-married and his new wife just gave birth to a baby boy?

These are tough questions in light of the Court’s comments in Willick and L.G. v. G.B. Couldn’t the husband foresee his retirement at the time the order was made? Didn’t the parties foresee the possibility of another relationship and other children?

Consider Willick. Three years after separating, the parties agreed to the husband paying the wife support and incorporated the agreement into a Divorce Judgment. At the time, the wife had been seeing a male friend. The wife began living with the friend and the husband sought to change the support arrangements. Is that a “material change” in circumstances? According to the Supreme Court of Canada, it wasn’t. The fact that the wife was already seeing the person and that person would become her companion was known or ought to have been contemplated by the husband at the time the parties negotiated the agreement. In consequence the ex-husband was obliged to continue paying support.

What is clear for a variation application is the importance of thoroughly reviewing the circumstances of the parties at the time the order was made (or the time the agreement was negotiated) as well as the circumstances of the parties at the time of the variation application. As well, it is crucial to review the terms of the order or agreement in detail. If you are owed support, call the FRO. If you’re paying too much, consult counsel, and if you’re in arrears, commence a variation application.

Don’t wait until it’s too late.

For parties presently attempting to resolve a separation by way of a separation agreement, any proposed term(s) in an agreement concerning future changes to support arrangements must be carefully scrutinized. Additionally, it is necessary to put yourself in a position to provide a complete recount of the circumstances of you and your spouse at the time when the agreement was signed. Insist therefore upon yearly financial disclosure of tax information and income information. As well, if you’re facing a spousal support claim, make sure you expressly deal with Willick in your agreement or you may regret it!

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