Supreme Court of Canada – Variation of Spousal Support
In December 2011, the Supreme Court of Canada released two decisions on the issue of an application for a variation in spousal support.
L.M.P. v. L.S., 2011 SCC 64
In this decision, coauthored by Justice Rosalie Abella and Justice Marshall Rothstein, at issue was an application for a variation in spousal support by the husband. During the marriage, the wife was diagnosed with multiple sclerosis. At the time of the divorce in 2003, the parties negotiated indexed spousal support payable by the husband, and the agreement of the parties was incorporated into a court order for spousal support. In 2007, the husband sought to reduce the amount of spousal support payable on the basis that the wife was able to work outside the home and should be able to find employment.
The Supreme Court’s decision distinguished between the factors in the Divorce Act applicable for an initial order for spousal support (under section 15.2) and for a variation of an existing court order (under section 17). The section 17 factors required a determination by the Court of whether there had been a material change in the parties’ circumstances since the previous order. Upon examining the parties’ circumstances at the time of the previous order, the Court held that there had been no such change: it was known at the time of the previous order that the wife had multiple sclerosis and could not be expected to seek employment outside the home. The husband’s variation application was therefore denied.
R.P. v. R.C., 2011 SCC 65
In this decision, a majority of the Supreme Court of Canada, in a judgment also coauthored by Justice Rosalie Abella and Justice Marshall Rothstein, denied the husband’s application for a variation of spousal support (the initial Order had been made in 1991). A majority of the Court found that there was insufficient evidence to make a finding that the circumstances warranted a variation. The husband had argued that his assets had been affected by a market downturn, but he had failed to provide any evidence about whether he had crystallized his losses by selling any assets at the time of the alleged decline in value. Furthermore, there was no evidence before the Court as to the husband’s financial circumstances at the time the initial spousal support Order was granted, and therefore it was held that the Court had no ability to make determinations as to whether those circumstances had changed.