When can Spousal Support be Varied?

Both the Divorce Act and the Family Law Act give authority to change the amount of spousal support that must be paid, and although worded differently, both acts require a change in circumstances before the variation is warranted. It’s important to bring the variation application under the Act which the support order was originally made under; the Family Law Act cannot be invoked to change a support order made under the Divorce Act (Malbon v. Malbon, 2017 BCCA 427), and vice versa.

The factors for the court to consider when asked to change spousal support are set out in section 17 (4.1) of the Divorce Act and Section 167 of the Family Law Act. In case law, a substantial change of circumstances has been constituted by multiple scenarios including:

• A change in income;
• A change in expenses;
• Retirement;
• Re-partnering; and
• A change of residence for the child.

If parties presume the payor’s income will somewhat fluctuate, but instead it increases significantly, the situation will likely meet the requirement of a substantial change in circumstances (Jennens v. Jennens, 2020 BCCA 59). Purposeful, voluntary changes made to one’s life, such as taking a larger mortgage for a shorter amortization, will not lead to a change of support (Poon v. Poon, 2005 BCCA 60).

A foundational principle of the spousal support obligation is that payor’s must compensate their spouses when that spouse’s contributions to the family allowed the payor to obtain the high income they later benefit from (Judd v. Judd, 2010 BCSC 153).

Voluntary retirement is typically more carefully analyzed by the courts than forced retirement. When considering if retirement justifies changing support obligations, the courts will look at age, background, employment opportunities, and the objectives of the support order (Brouwer v. Brouwer, 2019 BCSC 274). In Cramer v. Cramer, 2000 BCCA 272, the payor was forced to retire due to a health condition, the estate had been split equally originally, and the payee spouse had failed to follow through with educational plans that would have led to financial self-sufficiency. The payor’s retirement constituted a change in circumstances and the spousal support was terminated entirely.

Remarriage or re-partnering alone is not sufficient to trigger a material change in circumstances (Morigeau v. Moorey, 2013 BCSC 1923). But when combined with other factors such as an increase in the payee’s workplace earnings, the requirement can be met (Clarke v. Clarke, 2014 BCSC 824). A change in the children’s residence, meaning an increase in expenses for the parent who is primarily caring for them, can constitute a change in circumstances sufficient to vary spousal support (Aspe v. Aspe, 2010 BCCA 508). . If you’d like assistance with resolving any family matters, please contact Heath Law LLP to book a consultation.