After separation, one spouse may be obligated to pay spousal support to the other. This is especially common in long-term relationships where one spouse was the primary financial earner. What happens, however, when the recipient enters a new relationship?
Material Change of Circumstances
Section 17 of the Divorce Act, and section 167 of the Family Law Act allow a party to apply to vary a spousal support order.Before varying a spousal support order, the court must be satisfied that “a change in the condition, means, needs or other circumstances” of either spouse has occurred since the last spousal support order was made. To change or cancel the order, the payor must show there was a material change of circumstances that was not foreseeable at the time the original order was made. Specifically, has a change occurred that if known at the time of the order, would have resulted in a different order being made (Willick v Willick [1994] 3 SCR 670)?
While remarriage or repartnering is not alone sufficient to trigger a material change in circumstances (G. (L) v B. (G.) [1995] 3 SCR 370, Kelly v Kelly, 2007 BCSC 227), there are circumstances where a repartnering will constitute such a change.
Compensatory or Non-Compensatory Spousal Support
Support can be paid for compensatory or non-compensatory reasons (Bracklow v Bracklow [1999] 1 SCR 420). Compensatory reasons aim to compensate a spouse for the economic advantages or disadvantages caused by the marriage or its breakdown. Non-compensatory reasons are about the financial hardship separation can cause and are aimed at helping the financially dependent spouse become self-supporting.
A compensatory order stays in place until compensation has been achieved (Tedham v Tedham, 2005 BCCA 502). A repartnering would therefore not change such an order. A non-compensatory order, however, is subject to change depending on developments in the financial circumstances of the recipient.
In Zacharias v Zacharias, 2015 BCCA 376, the payor spouse applied to reduce the amount of spousal support payable to his former wife, after she remarried. The Court of Appeal upheld the chambers judge’s decision to reduce the payor’s spousal support obligations by 50%, and not cancel spousal support entirely. The reason being, half of the original spousal support order was compensatory, and half was non-compensatory. The court determined that only the non-compensatory portion of the order could be changed.
Summary
Before applying to vary a spousal support order, it is important to understand the basis on which the order was made. If it was at least partially non-compensatory, have the recipients’ financial circumstances changed in a material way that was unforeseen at the time of the initial order? If so, there may be grounds for changing the spousal support order.
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