Spousal support agreements and orders are never absolutely final and can always be changed. This is true even if you and your ex-spouse have agreed never to raise the spousal support.

Consider the recent court case involving David and Shirley. They were married in 1985, separated in 2004 and divorced in 2005. Based on David’s income of about $340,000, they agreed that Shirley would be paid spousal support starting at $9,800 a month, which would then drop to $4,000 a month by 2011 and end in 2012 or when David retired. The agreement was made part of their divorce order.

Two years after the divorce, Shirley asked the court to increase her spousal support. David had remarried (his new wife also earned a good income) and enjoyed a standard of living similiar to that which he and Shirley enjoyed while married. Shirley, on the other hand, was battling cancer, had to downsize her home and was having a hard time earning an income. She wanted her support to equal roughly what the Spousal Support Advisory Guidelines would allocate to her. (Many judges rely on these guidelines, which generate ranges for the amount and duration of spousal support in a variety of cases.)

In deciding whether to change a spousal support agreement, a court looks at two things. First, was the agreement fairly negotiated and fair when signed? Second, is the agreement still fair and consistent with the objectives of the Divorce Act? Or are there unanticipated new circumstances that now make it unfair? These circumstances have to be significantly different from what the couple originally considered. For example, in general, it’s not good enough to say that the support should be changed because house prices have fallen or one spouse has become ill, as the couple should have contemplated these things when they negotiated the support.

The chambers judge who heard Shirley’s application for increased support concluded that she and David had anticipated certain possibilities, like Shirley needing surgery for cancer. But they hadn’t anticipated that her health would get as poor as it actually became. The cumulative effect of both her unanticipated multiple surgeries and continuing inability to work three years after the divorce constituted a significant change in circumstances – enough to justify changing the support order. The judge bumped up her support to $9,300 a month until 2011, when it would then drop to $7,500 (and could continue indefinitely).

On appeal, the BC Court of Appeal agreed that in light of the changed and unanticipated circumstances, the spousal support agreement (incorporated in the divorce order) was clearly unfair.

However, David and Shirley had also written in their agreement that the spousal support was fair and that “under no circumstances” would it be increased. Because of this, the Court of Appeal was of the view that the spousal support should not be changed as radically as the chambers judge had changed it. The Court of Appeal decided to keep the amount the same as what was set out in the agreement/order. But it extended the length of time the support would be paid for another three years to 2015 or when David retired (whichever came later).

For assistance with a divorce, separation or other family law matter, give us a call.

Written by Janice and George Mucalov, LL.B.s with contribution by COBBETT & COTTON. This column provides information only and must not be relied on for legal advice. Please contact COBBETT & COTTON for legal advice concerning your particular case. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer. “You and the Law” is a registered trade-mark. ©Janice and George Mucalov.

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