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.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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