Shortly after the parties married in 1988, the wife was diagnosed with multiple sclerosis. During the marriage, the husband pursued his career while the wife looked after the household and children. After the parties separated in 2002, they entered into a comprehensive agreement that was incorporated into a court order in 2003; the wife was to receive spousal support in the amount of $3,688/month, indexed, with no mention of a termination date. In 2007, the wife applied for increased child support. The husband countered and brought a variation application under s. 17 of the Divorce Act seeking a reduction and, ultimately, a cancellation of spousal support on the grounds that there had been a change in his financial circumstances and that the wife should seek employment.
The trial judge rejected the husband's claim that his financial circumstances had changed, but concluded that the wife was able to work outside the home. The trial judge considered the active role of the mother, her ability to be at trial every day, and the wife's inability to demonstrate that she had been unable to find work. As a result, an order was made reducing, then terminating her spousal support as of August 2010. There was no mention of a material change of circumstances.
The Court of Appeal rejected the wife's appeal, concluding that her failure to become self-sufficient over time gave rise to a material change in circumstances. She had not looked for work in four years, so spousal support should terminate. The wife was concerned that looking for work would disentitle her to the disability she was receiving.
- Should the wife's spousal support be terminated?
Appeal allowed; original order restored.
Abella and Rothstein, writing for the majority, say that s. 17 arrangements exist because separating spouses have an impaired ability to realistically and objectively assess their future needs, due to the emotions surrounding separation/divorce. There is some dispute about this; the traditional view of s. 17 is that it prevents the parties from having to predict their long-term situation. They discuss the purpose of support agreements being about apportioning risk and achieving finality and certainty.
The Divorce Act authorizes courts to vary spousal support terms either on an initial application for support under s. 15.2, or on an application to vary an existing court order under s. 17. For initial applications for support (variations to support agreements or interim orders) brought under s. 15.2(4), the court must consider the length of cohabitation, the functions of the spouses in the relationship, and any agreement or arrangement related to spousal support, whether formal or informal. For variations under s. 17(4.1), the court must consider the conditions, means, and needs of the other spouse and other circumstances, with no mention of prior arrangements. Abella and Rothstein hold these are two fundamentally different processes; you cannot import one set of considerations into the other, however if there was an agreement, it is still relevant to a consideration of a material change under s. 17 as this will inform whether a material change exists.
The correct test, in the opinion of the majority, is that from Willick: a court must be satisfied that there has been a material change in circumstances since the making of the prior order or variation, meaning a change that, "if known at the time, would likely have resulted in different terms".
Applying this to the case at bar, they find that the trial judge erred in conducting a de novo hearing on the issue of the wife's ability to work, and thus in concluding that she should become economically self-sufficient without making a finding about whether there had been a material change in the wife's circumstances since the 2003 order. The Court of Appeal also erred in determining that the wife had the capacity to work, and that this, coupled with the passage of time, amounted to a material change of circumstances. Upon examination of the actual circumstances of the parties at the time the order was made and the terms of the order, it is apparent that there has been no material change of circumstances since the making of the order and that there was therefore no basis on which to vary it under s. 17(4.1). At the time of the order, the wife had multiple sclerosis and was not expected to seek employment outside the home, and there has been no material change since that time.
The support agreement contained a provision stating "[t]his agreement is full and final". The majority held that this remains subject to variation under s. 17, if a material change in circumstances arises.
Cromwell, agreeing in the result, disagrees with the analysis of the majority. He held that the decision of the court in Miglin, dealing with an initial support order under s. 15.2, provided the framework for variations under s. 17. The broad language of conditions, means, and needs of the spouse necessarily contained a consideration of the length of cohabitation, functions, orders, etc.
Test for variations under s. 17 of the Divorce Act:
- Do the conditions for a variation exist?
- Has the applicant shown a material change in circumstances?
- Apply Willick: consider whether the change would likely have resulted in a different order.
- Starting point must be the original order; this is not a de novo hearing or a retrial.
- If the threshold is met, what variation should be made?
- Any variation must be justified by the change in circumstances.