Supreme Court: defining “material change in circumstances”
Family Law cases rarely make their way to the Supreme Court, but the matter of L.M.P. v. L.S. did just that, and the decision was released on December 21, 2011. The issue in this case was defining and dealing with a “material change in circumstances.”
The husband was applying to reduce and terminate his spousal support obligations as a result of an alleged change in his financial circumstances and the wife’s failure to make efforts to become self-sufficient since the support Order was granted.
The Supreme Court Judges were faced with the task of establishing the proper approach with respect to varying a spousal support Order by way of Section 17(4.1) of the Divorce Act. Part of making a determination in this regard involves analyzing the approach taken when initial Applications for a spousal support Order are made via Section 15.2 of the Divorce Act.
Section 17(4.1) of the Divorce Act reads as follows:
Factors for spousal support order
(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.
And, Section 15.2 of the Divorce Act reads as follows:
Spousal support order
15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
Complicating this matter was the fact that the wife was diagnosed with multiple sclerosis shortly after the date of marriage and she has not worked at all since then.
As per their 2003 Separation Agreement, the husband was to pay the wife $3,688.00 per month in spousal support. This Agreement was turned into a Court Order which did not specify a termination date for spousal support.
The husband’s initial attempt at getting a variation and reduction of spousal support was made in 2007.
The trial judge rejected the husband’s claim that his financial circumstances had changed, but the trial judge did decide that the wife was now able to work. The result: an Order that set out a reduction of spousal support and identifying August 2010 as the termination date for spousal support. The judge did not comment on whether there had been a material change in circumstances.
The decision seemed to be based on the facts presented, but those facts were not evaluated in light of the concept of “material change.” The Court of Appeal for Quebec held that the wife’s failure to become self-sufficient did amount to a material change, hence the further appeal to the Supreme Court.
In the end, the wife’s argument prevailed and the Supreme Court decided that the original 2003 Order should be restored.
The minority position, however, was most captivating, in my opinion. In his reasoning, Justice Cromwell advised as follows:
“When, as here, parties have reached a comprehensive, final separation agreement and its provisions are incorporated into a court order, those provisions must be given considerable weight in a subsequent variation application in relation to spousal support.”
In other words, Justice Cromwell is expressing an agreement reached on consent between two people with the requisite capacity should be respected as much as possible and that the threshold for what constitutes a material change is actually quite high.
The two-step test used to establish materiality, developed in the case of Miglin v. Miglin, is as follows: the change must be one that (1) relates to something that was not either expressly addressed by the parties in the agreement or that cannot be taken as having been in their contemplation; and (2) results in the support provision, considered in the context of the entire agreement, no longer being in substantial compliance with the objectives of the Act as a whole. The objectives of the Act are finality, certainty, and autonomy.
Essentially, this decision represents a strict interpretation of the Miglin test and strict adherence to the objectives of the Act. The wife’s self-sufficiency, or lack thereof, must have been in the contemplation of the parties at the time they entered into their Agreement. Given the medical situation and historical role of this particular wife as a homemaker, achieving self-sufficiency was no guarantee. It does not take an overly large logical leap to conclude that the parties foresaw the possibility that the wife’s circumstances would prevent her from working for a long-time, or perhaps even permanently. Allowing the appeal is more in tune with the Act than dismissing it, which would all but ignore the element of autonomy that the Act is supposed to acknowledge.