Determining Material Change in Circumstances in Spousal Support Variation Applications
In L.M.P. v. L.S., 2011 SCC 64, the wife appealed a judgment from the Quebec Court of Appeal, which affirmed a decision reducing and then terminating her spousal support. The wife was diagnosed with multiple sclerosis shortly after the parties were married. During the marriage, the husband pursued his career and the wife maintained the home and cared for the children. The parties were divorced in May 2003, after a 15-year marriage. They entered into a separation agreement which included a provision for indexed spousal support, initially in the amount of $3,688 per month.
In 2007, the wife brought a variation application under section 17 of the Divorce Act (Canada) and sought retroactive and prospective increase in child support. The husband brought a cross application to reduce and ultimately terminate spousal support. The husband argued that the deterioration in his financial circumstances was a material change in circumstances. The Trial Judge did not agree with his argument but determined that the wife was capable of working outside the home and made an order reducing and eventually terminating spousal support as of August 2010.
The wife appealed and argued that the Trial Judge had made an error in varying the spousal support without the existence of a material change in circumstances as required by section 17 of the Divorce Act. The Court of Appeal dismissed her appeal and concluded that the fact that the wife did not become self-sufficient amounted to a material change in circumstances.
The Supreme Court of Canada allowed the wife’s appeal. In this case, the parties had entered into a separation agreement prior to the initial section 15.2 order. An initial application for a support order is different than an application for a variation of that order. At an initial application under section 15.2, a court must consider the extent to which it will incorporate the terms of an existing agreement into a first court order for support. At an application under section 17, a court must determine whether there has been a material change in circumstances, which would permit a variation of a previous order. In particular, a court must consider whether there has been a change in the conditions, means, needs or other circumstances of either party since the original spousal support order. In determining whether a change qualifies as a material change, a court examines whether knowledge of that circumstance at the time the original or previous order was granted, would have altered the terms of the order. The consideration of whether there has been a material change in circumstances is exactly the same for an order that does not incorporate a prior spousal support agreement as for one that does.
The Supreme Court of Canada determined that there had not been a material change in circumstances since the original order. The wife had already been diagnosed with multiple sclerosis and was not expected to work outside of the home at the time the original order was granted. Nothing had changed with respect to her medical condition and her employability. The husband had not established a material change in circumstances which would justify a variation pursuant to section 17.
The main point of this case is that a court’s considerations for an initial spousal support order pursuant to section 15.2 and a variation of a spousal support order pursuant to section 17 are distinct. Section 15.2(4)(c) requires that a court must consider “any order, agreement or arrangement relating to support of either spouse”. Section 17(4.1) does not refer to consideration of separation agreements and only insists that a court be satisfied that “a change in the condition, means, needs or other circumstances of either former spouse has occurred” since the original order or most recent variation of that order.