It is not uncommon for parties to resolve their differences by way of separation agreement, such agreement also addressing the issue of spousal support. When it comes time to finalize the divorce, it is also not uncommon for the terms of that separation agreement to be incorporated into a court order that also sets out the terms of the spousal support.
But what happens when one spouse, after a passage of time, wants to vary or even terminate the spousal support that they are paying to their now ex-spouse? This issue was addressed recently by the Supreme Court of Canada.
In that case, the parties were married for 14 years, with children. Shortly after marriage, the wife was diagnosed with multiple sclerosis. As part of the separation agreement, the husband agreed to pay the wife spousal support of $4,294.48 per month, which was included in the divorce order.
Five years later, in response to the wife seeking more child support, the husband sought to reduce spousal support. At the time of the variation, the wife’s illness had not worsened.
The Supreme Court of Canada concluded, that as the wife’s condition since the order had not worsened, there was no change in circumstances, let alone a material one. As such, the amount of spousal support should not change.
Even if there is a separation agreement which is incorporated into a court order, to change the spousal support provisions in that court order, there must be a material change in circumstances. This is not a new statement of the law. Before a court will change its previous order, the court must be satisfied there is a material change in circumstances. What the Supreme Court of Canada did was re-state that principle. The Supreme Court also re-emphasized that a request to change spousal support is not a new hearing. The court is not there to determine the wife’s ability to work as at the time of the variation hearing.
Rather, the court is there to determine whether there has been a material change in circumstances. If not, the spousal support order continues. If there has been a material change in circumstances, then the court will consider what appropriate amount of spousal support ought to be paid.
What the Supreme Court did specifically address, is the role the separation agreement plays in the determination as to whether there has been a material change in circumstances.
The separation agreement itself can refer to anticipate future circumstances, so as to indicate what will or will not amount to a material change in circumstances. Further, the separation agreement itself could define what is or is not a material change in circumstances.
The more specific the separation agreement is in relation to a material change in circumstances, the more important and useful it will be in determining whether there has been a material change in circumstances.
If the separation agreement includes only general clauses regarding spousal support, then its use in a variation application will be limited. The court, in considering whether there has been a material change in circumstances, will not place much weight, if any, on the separation agreement, if it is not specific.
» Scott Abel is a lawyer with Paterson, Patterson, Wyman and Abel, with offices in Brandon, Neepawa and Virden.
Republished from the Brandon Sun print edition May 5, 2012