“Review” of Spousal Support

At the end of a common law relationship or marriage, one party, usually the wife, has been out of the work force for a period of time.  Often this is because a decision was made that she should stay home and tend to the needs of the children.  When the relationship breaks down spousal support is raised as an issue.

Sections 15.2(4) and (6) of the Divorce Act and section 93(4) of the Family Relations Act set out the objectives of a support order and the factors the court is to consider when deciding whether to order spousal support and for how long.

Often, though, the wife’s prospects of employment are not known at the time of the trial. Sometimes skills are rusty and retraining is required, sometimes there just needs to be a little time to build up seniority to move from part time to full time employment and sometimes the children are so young that it is reasonable for the wife to continue to remain at home for a period of time to continue tending to the children’s needs. It is in these sorts of circumstances that courts often order spousal support for a specific period of time with a “review” at a later date.

If the court orders that spousal support be paid at $800 per month until further order of the court, a spouse who wants to have the order changed must prove that there has been a significant change in either his or the other party’s circumstances since the last court order was made.  For example, the payor has lost employment, retired or become disabled or the recipient has found high paying employment. If the applicant is unable to prove a significant change in circumstances, the application is dismissed and the order for spousal support remains in place. It can be very difficult to establish a sufficient change.

If, however, the court orders that spousal support be paid at $800 with a review in three years from the date of the court order, the person who wishes to change the order does not have to prove a significant change in circumstances. On a review the court simply looks at the circumstances of the parties at the time of the review and decides whether or not the support should continue and whether the amount payable should be changed.

The Supreme Court of Canada, in the case Leskun v. Leskun, 2006 SCC 25, [2006] 1 SCR 920 directly addressed the issue of reviews in the context of spousal support. What is clear from that case is that the courts should, as far as possible, avoid the use of review orders.  If  a review order is made, it ought to be “tightly delimited” as failure to do so “will inevitably be seen by one or other of the parties as an invitation simply to reargue their case”. (see paragraph 39 of Leskun)

Most often court orders are broadly written so that the review covers both the amount to be paid (the “quantum”) and the length of time for which spousal support is to be paid (the “duration”). But in a few cases where the court orders have been more tightly drawn, the court has limited the review to either the quantum or the duration. A recent case from the British Columbia Court of Appeal, Westergard v. Buttress, 2012 BCCA 38, is a case in point.

In the Westergard case, the wife had been out of the work force and the trial judge decided that she was entitled to spousal support in order to become self-sufficient. Spousal support of $450 per month was ordered. With respect to the duration, the court’s Reasons for Judgment were that Ms. Westergard would “receive support payments for four years. On the fourth anniversary of this order the spousal support order shall be reviewed. Upon review, Ms. Westergard will bear the onus of showing that spousal support should continue. The parties may in the meantime make application to vary, suspend, or terminate this order due to a change of circumstance.” (see paragraph [4]).

When the lawyers prepared the court order, the language used was slightly different, effectively terminating the spousal support on the fourth anniversary of the order and changing the mandatory review to an optional one. The onus was still on Ms. Westergard to prove that spousal support should continue.

Ms. Westergard did apply to the court to extend the time for payment of spousal support. When her application was heard, the Supreme Court Chambers judge increased the support to $800 a month and did not stipulate an end date. Not surprisingly, Mr. Buttress appealed to the BC Court of Appeal.

The Appeal Court found nothing wrong with the Chambers judge’s order to continue to the spousal support but did not agree that the Chambers judge was entitled to increase the amount of the spousal support. The Appeal Court referred to the Leskun case and reiterated that review orders should be “tightly circumscribed, to indicate the precise issue that is being reviewed.” Reading the trial judge’s Reasons the Appeal Court said the trial judge’s:

 [21]        … purpose in providing for a review was to allow a determination to be made as to whether Ms. Westergard had realized her goal of achieving self-sufficiency and whether she continued to be entitled to support. To the extent that any review of quantum was contemplated, it could only be a consequence of Ms. Westergard’s partial achievement of self-sufficiency, or her failure to comply with the requirements of s. 96(4) of the Family Relations Act to make reasonable efforts to achieve self-sufficiency. Any change to quantum of support that was not related to efforts to achieve self-sufficiency could only be accomplished through a variation application…”

The Westergard case highlights the importance of the wording of court orders and how important it is to carefully set the parameters for any review of spousal support.

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