This case addresses the issue of variation of support and the notion that an order of the court is final subject to section 17 of the Divorce Act.

Background

The parties were married on August 25, 1989 and had four children together.  The parties separated on March 31, 2001 after 11.5 years of marriage.  At the time of separation, the Appellant was 38 years old and the Respondent was 36 years old.

The parties had entered into Minutes of Settlement, dated January 16, 2009, some of which were incorporated into a Consent Order, dated February 21, 2008.  The order provided that the husband would pay spousal support in the sum of $3000 per month commencing March 1, 2008 and on the first day of each month thereafter.  There shall be no termination for spousal support.  Either party may ask for a review of the quantum of support upon a material change in circumstances.

Furthermore, the order provided that the Appellant “shall transfer her one-half interest in the former matrimonial home to the [respondent] as lump sum child support … inclusive of s. 7 expenses including University / College expenses”, for the support of their three children.

The Respondent brought a Motion to Change on November 7, 2008. The motion was dismissed and the Respondent appealed.  The appeal was dismissed finding that there had been no material change in circumstances and “that the consent order provided that only the quantum but not the duration of spousal support could be subject to variation” (paragraph 9).

The Respondent brought a second Motion to Change on October 26, 2010.  At trial the Respondent argued that there had been “material changes in circumstances that warranted terminating spousal support and entitled him to receive child support from the Appellant” (paragraph 10).

The trial judge found that there had been a material change in circumstances and ordered that support should end as of June 1, 2013.  Furthermore, the court imputed an income to the Appellant and ordered that she pay $505 per month in child support and, additionally, be required to pay 20 per cent of section 7 expenses for the children.

On appeal, the appellant argued that

1. The Respondent was prevented from bringing an application to terminate support pursuant to the Court of Appeal’s 2010 decision
2. The Respondent had not demonstrated a material change; and
3. If there had been a material change, the trial judge erred in terminating support and in ordering the Appellant to pay child support to the Respondent.

Analysis

The Impact of the Court of Appeal’s Decision

The Ontario Court of Appeal held that

• The fact the parties agreed not to terminate the support does not prevent a party from returning to court where there is a change in circumstances such as to warrant a variation including the possibility of ending support altogether (paragraph 18).

The Willick v Willick inquiry clearly states that a change in circumstances must be “a material one, meaning a change that, if known at the time, would likely have resulted in different terms” (paragraph 19).

Further, the Ontario Court of Appeal held that the fact “that the Court of Appeal has, in the appeal from the first application, finally determined the proper interpretation of the consent order does not prevent the respondent from seeking a variation of that consent order” (paragraph 20).

Material Change in Circumstances

The Ontario Court of Appeal upheld the trial judge’s finding that there was a material change in circumstances as the finding was “anchored not only in the change in the respondent’s salary but also the significant unexplained improvement in the Appellant’s financial circumstances” (paragraph 22).  Further, having the threshold for variation had been met, the issue becomes whether the terms of the variation ordered by the trial judge were appropriate.

Trial Judge Err

The approach a court ought to take when making variation orders is:

• Once a material change in circumstances has been established, the variation order should properly reflect the objectives set out in s. 17(7), take account of the material changes in circumstances, and consider the existence of the separation agreement and its terms as a relevant factor.  A court should limit itself to making the variation order which is appropriate in light of the change.  The task should not be approached as if it were an initial application for support under s. 15.2 of the Divorce Act (paragraph 24).

Further, it was held in Miglin v Miglin, 2003 SCC 24, that:

• Consistency between treatment of consensual agreement incorporated into orders and those that are not is achieved when judges making variation orders under s. 17 limit themselves to making the appropriate variation, but do not weight all the factors to make a fresh order unrelated to the existing one, unless the circumstances require the rescission, rather than a mere variation of the order (paragraph 25).

The Ontario Court of Appeal held that once the trial judge found a material change, “he then all but ignored the fact that the parties had entered into a comprehensive settlement leading to the original consent order in February 2008” (paragraph 26).  The trial judge’s analysis “should be grounded in the actual circumstances of the parties at the time the consent order is entered into” (paragraph 28).

Thus, the Ontario Court of Appeal held that the trial court did err in its decision as the trial judge did not consider the impact of changes from the date of the order.  As such, the Ontario Court of Appeal set aside the order of the trial judge and ordered a new trial.