Canada: How We Failed To Establish A General Test To Determine What Constitutes A Material Change In Circumstances In Variation Applications

Presented to the 9th Annual Family Law Summit
March 30th and 31st, 2015

INTRODUCTION

In Willick v. Willick, the Supreme Court of Canada held that in deciding whether the conditions for a variation exist, "it is common ground that the change must be a material change of circumstances".1 But what constitutes a material change in circumstances? We undertook to establish rules of general application to prove when a material change in circumstances occurs in the context of variation applications as to orders or agreements for child support, spousal support and custody and access. We failed.

Many great minds have pondered the nature of change. The Greek philosopher Heraclitus postulated that change alone is unchanging. The Great Buddha came to a similar conclusion, teaching that everything changes, nothing remains without change. In Walden, Henry David Thoreau wrote, "Things do not change; we change".2 We therefore feel we are in good company when we are equally vague when opining on when a material change occurs. In the end, we can only conclude that what constitutes a material change of circumstances, in the context of a variation application, depends on the circumstances in each individual case, and accordingly, we have no general principles to offer you.

But we can offer a recital as to how the court has addressed the concept of analyzing change in variation applications. Part I of this paper focuses on the statutory requirement for a change of circumstances in varying an order for child support, the inception of the material change test and how it has been applied in recent years. Part II conducts a similar analysis in the context of spousal support, outlining the relevant legislative provisions, tracing the importation and modification of the material change test and its recent application. Part III addresses the variation of custody and access orders. Part IV provides a critique of the stringent application of the material change test. Finally, Part V will conclude with a review of the changes to which courts have referred in addressing the notion of a material change in circumstances in variation proceedings.

(a) The Context for Addressing Material Change

The context for addressing a material change in circumstances is a variation proceeding. A variation proceeding is defined at section 2(1) of the Divorce Act as a "proceeding in a court in which either or both former spouses seek a variation order."3 A variation proceeding is therefore entirely dependent on the existence of a prior order or agreement.

A distinction must be made between a court's power to vary the terms of an order under section 17(1)(a) of the Divorce Act and a court's power to vary the support provisions of an agreement. Rule 15 of the Ontario Family Law Rules, which governs the procedure for changing orders and agreements, applies only to:

  1. final orders (with an exception under the Child and Family Services Act); and
  2. agreements for support filed under section 35 of the Family Law Act.4

Thus, unless an agreement has been incorporated into a court order under the applicable provincial legislation, when a court exercises its power to vary an agreement, it is making an original support order that stands apart from the agreement.

A variation proceeding must also be distinguished from a review proceeding. In a variation proceeding, the onus is on the applicant to show that a material change in circumstances has occurred since the making of the original order. In a review proceeding, a court makes a determination on a de novo basis, without the requirement of proving a material change in circumstances.

In addition, a variation proceeding is separate from an automatic adjustment, for example, the indexing of support or the increase in access time, as provided for in a court order or an agreement.

(b) Jurisdiction for Variation

The following chart illustrates the sections of the federal and provincial legislation which impose a requirement for a change of circumstances in a variation proceedings in the context of child support, spousal support and custody and access:

  FEDERAL STATUTES PROVINCIAL STATUTES (Ontario)
Child Support Divorce Act, R.S.C. 1985, c.3 (2nd Supp.)

17(4) Factors for Child Support Order -
Before a court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

Federal Child Support Guidelines, SOR/97-175

14. Circumstances for Variation -
For the purposes of subsection17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:

(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;

(b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and

(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).
Family Law Act, R.S.O., 1990, c. F.3

37(2.1) Powers of Court: Child Support -
In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33.

Child Support Guidelines (Ontario), O.Reg. 391/97

14. Circumstances for Variation -
For the purposes of subsection 37(2.2) of the Act and subsection 17(4) of the Divorce Act (Canada), any one of the following constitutes a change of circumstances that gives rise to the making of a variation order:

1. in the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof;

2. in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either parent or spouse or of any child who is entitled to support;

3. in the case of an order made under the Divorce Act (Canada) before May 1, 1997, the coming into force of section 15.1 of that Act, enacted by section 2 of chapter 1 of the Statutes of Canada; and

4. In the case of an order made under the Act, the coming into force of subsection 33(1) of the Act.
Spousal Support Divorce Act, R.S.C. 1985, c.3 (2nd Supp.)

17(4.1) Factors for Spousal Support Order -
Before a 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, an, in the making of the variation order, the court shall take that change into consideration.
Family Law Act, R.S.O., 1990, c. F.3

37(2.1) Powers of Court: Spouse and Parent Support -
In the case of an order for support of a spouse or parent, if the court is satisfied that there has been a material change in the dependant's or respondent's circumstances or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them;

(c) make any other order under section 34 that the court considers appropriate in the circumstances referred to in section 33.
Custody and Access Divorce Act, R.S.C. 1985, c.3 (2nd Supp.)

17(5) Factors for Custody Order -
Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.
Children's Law Reform Act, R.S.O. 1990, c. C.12

29.
A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

However trite, it is worth mention that where spouses are or were married, they may seek corollary relief under the Federal Divorce Act. Section 5(1) of the Divorce Act provides that a court in a province has jurisdiction to hear and determine a variation proceeding if either former spouse is ordinarily resident in the province at the commencement of the proceeding, or both former spouses accept the jurisdiction of the court.5

If two variation proceedings are commenced on different days, in two different courts, between the same former spouses in respect of the same matter, the court in which a variation proceeding was first commenced has exclusive jurisdiction to hear and determine any variation proceeding then pending between the former spouses in respect of that matter, and the second variation proceeding shall be deemed to be discontinued.6

Where variation proceedings between the same former spouses and in respect of the same matter are pending in two courts and were commenced on the same day, but neither is discontinued within thirty days, exclusive jurisdiction falls to the Federal Court to hear and determine any variation proceeding then pending between the former spouses in respect of that matter.7

In the instance of a custody application, where a variation proceeding to a court is opposed, and the child of the marriage in respect of whom the variation order is sought is most substantially connected with another province, the court has the power to transfer the variation proceeding to a court in that other province.8

Unmarried spouses must avail themselves of the relief provisions of the applicable provincial legislation. In Ontario, the Family Law Act9 governs variation applications for child and spousal support and the Children's Law Reform Act10 deals with the variation of orders for custody and access.

It should also be noted that under section 37(3) of the Family Law Act, no application for variation may be made within six months after the making of the order for support or the disposition of another application for variation in respect of the same order, except for leave of the court. There is no such limitation imposed by the Divorce Act.11

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Footnotes

1. Willick v. Willick, [1994] S.C.J. No. 94 (S.C.C.) ("Willick") at para. 21. This case related to issues of support, but the court in Gordon v. Goertz, infra note 109, adopted similar reasoning in custody and access matters.

2. Henry David Thoreau, Walden (Boston: Ticknor and Fields, 1854) at ch. 18.

3. Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) ("Divorce Act"), s. 2(1).

4. Family Law Rules, Ont. Reg. 114/99, r.15.

5. Divorce Act, supra note 3 at s. 5(1).

6. Ibid at s. 5(2).

7. Ibid at s. 5(3).

8. Ibid at s. 6.

9 .Family Law Act, R.S.O. 1990, c. F.3 ("Family Law Act") at s. 37.

10. Children's Law Reform Act, R.S.O. 1990, c. C.12 ("Children's Law Reform Act") at s. 29.

11. Family Law Act, supra note 9 at s.37(3).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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