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Can Spousal Support ever be Conclusively Dismissed or Waived for married spouses?

Can spousal support ever be conclusively dismissed or waived for previously married spouses?

The short answer appears to be "no".

If the spouses were married, then either spouse may apply for spousal support under the Divorce Act. It appears that even if a previous order or agreement provides that spousal support is "dismissed" or provides that spousal support is payable at $0.00 per month, a spouse may still apply for an order for spousal support. However, the applying spouse must then prove to the court that a "material change of circumstances" or "significant change" now exists since the making of the original order or agreement.

The case of Sandy v. Sandy, 2018 BCCA 182 provides guidance. In this case, there was a previous agreement for lump-sum spousal support agreed to in February of 2008 which provided the recipient spouse with $411,000 in support. The recipient spouse then applied for another order spousal support in 2013. At trial, the recipient was successful. The payor spouse then appealed.

In the course of the judgment, the appellate court confirmed that the jurisdiction of the court to order spousal support acting under the Divorce Act cannot be ousted. However, if there was a previous order or agreement on the issue of spousal support, then the applying spouse must prove that there was a "material change of circumstance" since the making of the initial order or agreement.

In the facts of this case, the appellate court found that the applying spouse did not meet the burden of proving a "material change of circumstances" and set aside the fresh spousal support order that was previously made at the trial in 2013.

I refer to pertinent excerpts of this case as follows: 

[19]        I digress from my analysis to note that the lack of clarity as to which statute and which provisions govern a proceeding is a common problem in family cases. These are often difficult choices to make, but it is incumbent on the parties to be clear from the start whether they are seeking relief under the provincial Family Law Act, S.B.C. 2011, c. 25, or the federal Divorce Act, and to specify in any order obtained under which Act the order is made: Fitzgibbon v. Fitzgibbon, 2014 BCCA 403 (CanLII) at para. 15.
[20]        It is also incumbent on the parties to decide whether they are making an application to vary an existing order, or an application for an originating order. A review of the case law demonstrates considerable confusion over the appropriate form of application in cases such as this one where a consent order is made dismissing a support claim. Before addressing Mr. Sandy’s contention that the judge erred in ordering him to pay spousal support, it is important in my view to answer two questions:
(a)      Can an order dismissing spousal support be varied under s. 17 of the Divorce Act?
(b)      Can a party whose claim for support has been dismissed apply for support under s. 15.2?
I will address each question in turn.
[36]        Based on the jurisprudence in this province to date, I conclude that an order dismissing a claim for spousal support (whether by consent or after trial) cannot be varied under s. 17 of the Divorce Act. If the approach adopted by the Ontario Court of Appeal in Tierney-Hynes were to be proposed, in my view a five-judge division would be required to consider the issue. I turn now to the second question.
[54]        In summary on these preliminary questions, in my view the court does not have jurisdiction under s. 17(1) to vary an order dismissing support. Rather, an applicant must apply for an original order under s. 15.2 and the court on that application will take into account the existence of the previous order dismissing support (and any underlying agreement) in assessing the merits of the application.
[58]        Variation of a pre-existing order under s. 17 requires an applicant to prove a material change in circumstances. In determining whether the change is “material”, the question is whether the change, if known, would likely have resulted in different terms. If the change was anticipated at the relevant time, it cannot be relied on as the basis for variation: L.M.P. v. L.S., 2011 SCC 64 (CanLII) at paras. 32, 42, 44; Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670 at 688. What amounts to a material change will depend on the actual circumstances of the parties at the time the order was made: L.M.P. at para. 34.
[61]        It follows that a significant part of the s. 15.2 analysis consists of determining whether there has been a significant and unanticipated change in the parties’ circumstances since they entered into their agreement — and that will be so whether the court is addressing an agreement or an agreement that has been incorporated into an order (Miglin at para. 60).
[62]        Applying the two-stage Miglin analysis to Ms. Keene’s application, there is nothing to suggest that the agreement was not negotiated fairly or that it was not in substantial compliance with the general objectives of the Divorce Act at the time it was entered into. There was full financial disclosure, both parties had counsel, and in addition, Ms. Keene had the services of a financial advisor throughout the negotiations leading to the agreement. The parties’ significant assets were divided equally, and Ms. Keene received a further $411,000 in lump sum spousal support.
[63]        Turning to the second stage of the Miglin analysis, Ms. Keene has the burden of establishing that there has been a significant change in the circumstances of the parties that was not within their contemplation when they entered into their agreement. Ms. Keene contended at trial that two material changes in circumstances had occurred since the settlement. First, she submitted that her pre-existing heart condition had become much worse than the parties had expected, preventing her from becoming self-sufficient. Second, she contended Mr. Sandy’s income had increased dramatically and unexpectedly.
[64]        The judge readily concluded that Ms. Keene had not proved a significant change in circumstances due to her health, but accepted that the change in Mr. Sandy’s income constituted a material change. In my respectful view, the judge fell into error in coming to the latter conclusion because she made an assumption, unsupported by evidence, that this change had not been within the contemplation of the parties when they reached their agreement.
[65]        As noted, Ms. Keene had the burden of proof. At the hearing of the appeal, she acknowledged that she did not testify as to what was within her contemplation about Mr. Sandy’s income when the agreement was signed. She was not asked whether she expected Mr. Sandy’s income to remain unchanged in the future, or whether she and Mr. Sandy had considered the potential for his income to fluctuate up or down. It is perhaps not surprising that little attention was paid to this topic at trial, given that Ms. Keene relied primarily on her submission that her health had changed significantly for the worse after the parties’ divorce. Five of the 27 paragraphs of her notice of application addressed that issue; the remaining paragraphs focused on child support and s. 7 expenses. Only one paragraph referred to Ms. Keene being unaware of Mr. Sandy’s significant increase in income, and that was added to the application on the fourth day of trial when the judge directed the parties to clean up the applications which were to stand in the place of their pleadings.
[71]        In my view the message to be drawn from Miglin and L.M.P. is that certainty and finality cannot be achieved by drawing orders that dismiss claims for support. Nor do embellishments such as “as if after trial” or references to “future claims” assist. Rather, parties wishing to achieve finality should set out in an order or agreement the potential changes in circumstances they have considered in reaching their agreement, and clearly identify the changes they agree will, or will not, warrant reconsideration of the terms on which they have resolved their support obligations (L.M.P. at paras. 38, 39, and 42).
[72]        In summary on this ground of appeal, in my respectful view the judge erred in finding that an increase in Mr. Sandy’s income was a significant change in circumstances not contemplated by the parties when they negotiated their agreement and entered the consent order. There is nothing to suggest that the agreement — fairly negotiated and substantially compliant with the objectives of the Divorce Act when it was entered into — should not continue to govern the parties’ post-divorce obligations to each other. It follows that I would set aside the order requiring Mr. Sandy to pay spousal support.
[81]        I would allow the appeal in part by setting aside the order for spousal support. Given the divided success, in my view the parties should bear their own costs on appeal.

Link to full case: Sandy v. Sandy, 2018 BCCA 182 (CanLII)

*Please note that this blog post does not address the dismissal or waiver of spousal support for unmarried couples.

If you would like discuss your family law case, please don't hesitate to contact me.

Written by
Mark J. Chiu
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