R. Variation and Termination of Support Orders

Author:Julien D. Payne - Marilyn A. Payne

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1) General

Section 17(4.1) of the Divorce Act empowers a court to vary an existing order for spousal support upon proof of a substantial, unforeseen, and continuing change in the condition, means, needs, or other circumstances of either former spouse since the granting of the order that is sought to be varied.385

An order for spousal support is subject to variation, rescission, or suspension on the application of either former spouse brought pursuant to section 17 of the Divorce Act.

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Although interim orders are specifically authorized by subsections 15.1(2), 15.2(2), and 16(2) of the Divorce Act, no jurisdiction to grant interim orders is explicitly conferred by section 17 of the Divorce Act, which empowers a court to make an order varying, rescinding, or suspending, prospectively or retroactively, a permanent spousal support order, child support order, or custody order. In British Columbia and Saskatchewan, appellate courts have addressed the issue of whether interim variation orders could be granted under section 11 of the Divorce Act, 1968,386the predecessor to section 17 of the Divorce Act.387While acknowledging that there was no jurisdiction to grant interim orders on an application under section 11(2) of the Divorce Act, 1968 where variation was sought in respect of an existing permanent order for corollary financial relief, the judgments of Burton v Burton388and Frey v Frey389stated that an order could be varied pursuant to section 11(2) of the Divorce Act, 1968, and then varied again, if injustices might otherwise arise from delay prior to a full review of the attendant circumstances. On the other hand, in Yeo v Yeo,390the Prince Edward Island Court of Appeal concluded that injustices and hardships that can arise from delay in the full hearing of an application to vary an order under section 17(1) of the current Divorce Act cannot be addressed by successive orders, the first of which is merely transitional pending a full review of the attendant circumstances. Instead, injustices and hardships must be addressed by expedited hearings and/or by orders for retroactive variation, the latter jurisdiction being explicitly recognized by section 17(1) of the current Divorce Act but not by section 11(2) of the Divorce Act, 1968. Notwithstanding their different perspectives, the three aforementioned judgments have two features in common. First, they openly acknowledge that the relevant statutory provisions confer no jurisdiction on a court to grant an interim order varying an existing permanent order. Second, they acknowledge the need for the avoidance of injustices or hardships that might arise from delay. Where they differ is in the means whereby such avoidance is secured. Where the interests of children are concerned, some courts have purported to exercise their parens patriae jurisdiction as a means of securing the interim variation of a final order for child support.391There is, nevertheless, room for doubt whether such jurisdiction can properly be invoked in a proceeding relating to child support, as distinct

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from a guardianship, custody, or adoption proceeding.392Even if such jurisdiction can be invoked to protect the economic interests of a child, there is no reason to assume that it can be invoked to reduce pre-existing child support obligations for the benefit of a parent. Furthermore, the parens patriae jurisdiction has no application in situations involving the variation of spousal support orders. As McQuaid J observed in Yeo v Yeo, "[t]he parens patriae jurisdiction of the court, as broad as it may be, may only be invoked when the person for whose benefit it is being invoked is incompetent. See: Re Eve [(1986), 61 Nfld & PEIR 273 at para 36 (SCC)]."393After a detailed review of relevant caselaw in Keogan v Weekes,394RS Smith J, of the Family Law Division of the Saskatchewan Court of Queen’s Bench, found himself "in harmony with the analytical chord struck by the Saskatchewan Court of Appeal in Frey

. . . [which] permits the court to address a manifest injustice but at the same time respects the strictures of the Divorce Act."395Applying that approach, Smith J concluded that changes in the children’s parenting arrangements were insufficient in themselves to justify an interim or temporary reduction in the amount of child support payable under a pre-existing permanent order in circumstances where the father’s current income as a farmer could not be resolved on affidavit evidence and required a viva voce hearing in which income issues and assertions could be tested by cross-examination.

On an application to vary a permanent spousal support order pursuant to section 17(4.1) of the Divorce Act, the onus falls on the applicant to prove a material change in the condition, means, needs, or other circumstances of either former spouse. As Sopinka J observed in Willick v Willick,396a material change is a change that was not contemplated by the court and that would have led to different terms if the change had been known when the order was granted. If the matter that is relied on as constituting a change was known at the relevant time, it cannot be relied on as the basis for variation. The change must be of a substantial, unforeseen, and continuing nature. In a variation proceeding, the existing support order must be assumed to have been correct when it was granted. Absent proof of a material change since then, the judge

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hearing a variation application has no jurisdiction to vary the order because he or she regards it as inappropriate or unrealistic. If a material change is established sufficient to warrant judicial intervention, the variation order should reflect that change in light of the objectives set out in section 17(7) of the Divorce Act.397An obligor cannot rely upon a future speculative financial change to justify variation of an order for spousal support.398The normal process of aging and the maturation of the family unit do not suffice as a change of circumstances.399A payor should not be estopped from seeking a variation in his spousal support obligations on the ground his retirement was "foreseeable" at the time of the original order. Courts routinely permit variations of spousal support orders if a payor retires. Courts should not look past a payor’s decision to retire unless its purpose is to frustrate a support order.400Whether retirement constitutes a material change depends upon the attendant circumstances of the case.401The question to be asked is whether the court finds that the decision to retire is reasonable, given all the circumstances.402If an early retirement will severely prejudice a spousal support recipient, a court may impute income for spousal support purposes as though the obligor had not retired.403

The requirement of a material change within the meaning of section 17(4.1) of the Divorce Act is not met where the applicant, who seeks a reduction in the amount of spousal support, fails to explain a change in his or her employment status and provides no evidence that he or she has made reasonable efforts to find comparable employment commensurate with his or her earning capacity based on his or her education, skill, experience, age, and health. A self-

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induced reduction in income does not satisfy the statutory requirement.404

Similarly, self-induced increased needs cannot be relied upon to justify increased spousal support. A recipient spouse is not entitled to spend his or her way into a "change of circumstances" for the purposes of section 17 of the Divorce Act. Applying the above principles, the British Columbia Court of Appeal in WCP v CP405found no error on the part of the chambers judge who had dismissed the wife’s application for increased spousal support because her increased expenses and reduced investment income were attributable to her lifestyle choice in purchasing a luxury condominium rather than more modest accommodation such as was envisaged by the trial judge when the original spousal support order was granted.

Changed circumstances may include not only the happening of something unexpected, but also the non-occurrence of an expected event.406A support recipient’s failure to achieve anticipated economic self-sufficiency within a specified period of time may constitute a material change of circumstances that justifies extending the duration of the order.407The receipt of an inheritance is a relevant factor to consider in quantifying spousal support and may constitute a material change of circumstances that justifies variation order of a needs-based spousal support order.408Where a bankrupt spouse is released from an equalization claim but retains an exempt pension asset, a support order might be used to redress the inequity.409Courts have recognized that a spouse’s bankruptcy, with a consequential release from property equalization or matrimonial debt obligations, can be a material change in circumstances justifying variation of a spousal support order.410

Where a divorced wife has been adequately compensated for the economic disadvantages sustained in consequence of her previous marriage and its breakdown, and her new career and remarriage negate any continuing need for spousal support, an order for termination of the divorced husband’s reviewable consensual spousal support obligation should be affirmed on appeal. A divorced wife has no proprietary interest in her divorced husband’s

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increased earning capacity, and she cannot sustain a claim for ongoing support based simply on a substantial disparity between their current incomes. Economic self-sufficiency, which is one of the objectives of the Divorce Act, is to be...

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