'If I knew then what I know now ...' varying spousal support.

• Author: Boll, Rosemarie
• Position: Family Law

When L.M.P. (I will call her Lisa) married L.S. (I will call him Leonard) in 1988, she was a 23-year-old cosmetics company representative and he was a 27-year-old lawyer. A year later, she was diagnosed with multiple sclerosis. She stopped working and began receiving permanent disability benefits. When they divorced in 2003, they had two children, Lisa was still on disability and Leonard earned about $165,000 per year. They signed an Agreement on spousal support--Leonard would pay Lisa $3,688 per month with no set time limit. This Agreement later became part of a court order. Four years later Lisa wanted more child support, and Leonard cross-applied to reduce spousal support. When Leonard succeeded, Lisa appealed to the Supreme Court of Canada. (SCC) (1)

Meanwhile, another case was winding its way through court. R. P. ('Ruth') married R.C. ('Robert') in 1958. Ruth was 10 years older than Robert, and like most wives of the time, Ruth stayed home and raised two children. They divorced 25 years later, and Robert didn't oppose an order to pay monthly child and spousal support totalling about $2,000. When the kids moved out, Ruth still needed the money--it was clear she could never earn enough to support herself. The court granted her application for more money, but Robert was dissatisfied and appealed to the Supreme Court of Canada. (2)

When two cases have different facts but raise the same legal issues, the SCC regularly hears them together. Here, the common issue was the interpretation of Section 17 of the Divorce Act. Section 17 has two parts--when is a spouse entitled to apply for a variation? And how does the court decide what the new order should say? The SCC also had to decide if there was a difference between varying a 'regular' order, and varying an order based on an Agreement.

1. Entitlement to apply--Section 17(4.1) Factors

   A spouse can apply for a variation only when there has been a material change in one of their circumstances since the prior order. Not every change is a material change. The test is: if we knew then what we know now, would the order have been different?

2. What should the new order say?--Section 17(7) Objectives

   The variation order should:

   (a) recognize any economic advantages or disadvantages arising from the marriage or its breakdown;

   (b) apportion the financial consequences arising from the care of any child of the marriage;

   (c) relieve any economic hardship arising from the marriage breakdown; and

   (d) in so far...