L.M.P. v. L.S.

L.M.P. v. L.S.
Collection
Supreme Court Judgments
Date
2011-12-21
Neutral citation
2011 SCC 64
Report
[2011] 3 SCR 775
Case number
33749
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Quebec
Subjects
Family law
Notes
SCC Case Information: 33749
Decision Content
SUPREME COURT OF CANADA
Citation: L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775
Date: 20111221
Docket: 33749
Between:
L.M.P.
Appellant
and
L.S.
Respondent
- and -
Women’s Legal Education and Action Fund and
DisAbled Women’s Network Canada
Intervener
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Abella, Rothstein and Cromwell JJ.
Joint Reasons for Judgment:
(paras. 1 to 61)
Concurring Reasons:
(paras. 62 to 100)
Abella and Rothstein JJ. (Binnie, LeBel and Deschamps JJ. concurring)
Cromwell J. (McLachlin C.J. concurring)
L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775
L.M.P. Appellant
v.
L.S. Respondent
and
Women’s Legal Education and Action Fund and
DisAbled Women’s Network Canada Interveners
Indexed as: L.M.P. v. L.S.
2011 SCC 64
File No.: 33749.
2011: April 20; 2011: December 21.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Abella, Rothstein and Cromwell JJ.
on appeal from the court of appeal for quebec
Family law — Support — Spousal support — Variation — Material change in circumstances — Court order incorporating terms of separation agreement — Husband applying to reduce and terminate spousal support order on basis of change in his financial circumstances and wife’s failure to become self‑sufficient since the date of order — What is proper approach to application for variation of spousal support order under s. 17(4.1) of the Divorce Act where support terms of agreement have been incorporated into an order? — Whether approach differs from initial applications for spousal support under s. 15.2 — Divorce Act, R.S.C. 1985, c. 3 (2nd Supp .), ss. 15.2 and 17 .
Shortly after the parties married in 1988, the wife was diagnosed with multiple sclerosis and has not worked since then. During the marriage, the husband pursued his career while the wife looked after the household and children. After the parties separated in 2002, they entered into a comprehensive agreement that was incorporated into a court order in 2003. Under its terms, the wife was to receive spousal support in the amount of $3,688 per month, indexed. The order did not specify a termination date for spousal support. In 2007, the husband brought a variation application under s. 17 of the Divorce Act seeking a reduction and, ultimately, a cancellation of spousal support on the grounds that there was a change in his financial circumstances and that the wife should seek employment. The trial judge rejected the husband’s claim that his financial circumstances had changed, but concluded that the wife was able to work outside the home. As a result, an order was made reducing, then terminating her spousal support as of August, 2010. The trial judge made no finding about whether there had been a material change of circumstances. The Court of Appeal rejected the wife’s appeal, concluding that her failure to become self‑sufficient over time gave rise to a material change in circumstances.
Held: The appeal should be allowed and the original 2003 order should be restored.
Per Binnie, LeBel, Deschamps, Abella and Rothstein JJ.: The Divorce Act authorizes courts to vary spousal support terms either on an initial application for support under s. 15.2 , or on an application to vary an existing court order under s. 17 . It authorizes courts to make an initial order which may be at odds with the terms of the agreement if those terms do not comply with the objectives of the Act. The two‑stage test outlined in Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, addresses the direction in s. 15.2(4) (c) that on an initial application for support, a court shall consider “any order, agreement or arrangement relating to support of either spouse”. Unlike the situation in Miglin, however, this appeal concerns an application under s. 17 to vary a spousal support order where there had been a spousal support agreement prior to the s. 15.2 order. Section 17 authorizes a court to vary, rescind or suspend prior orders, defines the factors allowing for variation, and sets out the objectives such a variation should serve. Notably, unlike on an initial application for spousal support under s. 15.2(4) (c), which specifically directs that a court consider “any order, agreement or arrangement relating to support of either spouse”, s. 17(4.1) makes no reference to agreements and simply requires that a court be satisfied “that a change in the condition, means, needs or other circumstances of either former spouse has occurred” since the making of the prior order or the last variation. The different language employed by Parliament in ss. 15.2 and 17 was recognized by the majority in Miglin as requiring a different approach to initial and variation applications. While the objectives of the variation order are virtually identical in s. 17 to those in s. 15.2 dealing with an initial support order, the factors to be considered in ss. 17(4.1) and 15.2(4) are significantly different. Under either s. 15.2 or s. 17 , the parties’ mutually acceptable agreement is not ignored, but its treatment will be different because of the different purposes of each provision.
The proper approach under s. 17 to the variation of existing orders is found in Willick v. Willick, [1994] 3 S.C.R. 670, and G. (L.) v. B. (G.), [1995] 3 S.C.R. 370, where it was held that a court must be satisfied that there has been a material change in circumstances since the making of the prior order or variation, meaning a change that, “if known at the time, would likely have resulted in different terms”. The threshold variation question is the same whether or not a spousal support order incorporates an agreement, namely, has a material change of circumstances occurred since the making of the order? The terms of the prior order are presumed to have been in compliance with the objectives of the Act at the time the order was made. A term stating that a specific type of change will — or will not — give rise to a variation, informs the court’s application of the Willick test. An agreement containing only general terms, such as a general statement of finality, provides little guidance in practice on whether or not a particular event or circumstance was contemplated by the parties or what consequences they would have ascribed to it. Once a material change in circumstances has been established, the variation order should properly reflect that change and the objectives set out in s. 17(7).
In this case, the trial judge erred in conducting a de novo hearing on the issue of the wife’s ability to work and in concluding that she should become economically self‑sufficient without making a finding about whether there had been a material change in the wife’s circumstances since the 2003 order. The Court of Appeal also erred in determining that the wife had the capacity to work, and that this, coupled with the passage of time, amounted to a material change of circumstances. Upon examination of the actual circumstances of the parties at the time the order was made and the terms of the order, it is apparent that there has been no material change of circumstances since the making of the order and that there was therefore no basis on which to vary it under s. 17(4.1) . At the time of the order, the wife had multiple sclerosis and was not expected to seek employment outside the home. There has been no material change in circumstances since that time.
Per McLachlin C.J. and Cromwell J.: When, as here, parties have reached a comprehensive, final separation agreement and its provisions are incorporated into a court order, those provisions must be given considerable weight in a subsequent variation application in relation to spousal support, in accordance with principles established in Miglin. The agreement plays a central role on an application to vary and the Miglin principles are highly relevant to this exercise. In order to meet the threshold for variation under s. 17 of the Divorce Act , a court must satisfy itself that a “material change” in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order. In order to be “material” a change must be one that: (1) relates to something that was not either expressly addressed by the parties in the agreement or that cannot be taken as having been in their contemplation; and (2) results in the support provision, considered in the context of the entire agreement, no longer being in substantial compliance with the objectives of the Act as a whole. Miglin directs that all of the objectives of the Act and the broader objectives of finality, certainty and autonomy must be considered.
Once the terms of a final agreement are incorporated into a court order, they are assumed to have met the statutory requirements at the time and the correctness of that order is not reviewed during the variation proceeding. While the court has discretion with respect to variation and is not strictly bound by the terms of the parties’ agreement, that agreement is an “important factor” in exercising the discretionary power to vary. Miglin affirmed that unimpeachably negotiated agreements should receive considerable weight provided that they represent the intentions and expectations of the parties and substantially comply with the objectives of the Divorce Act . This principle applies equally to a variation application as to an initial application for spousal support. Moreover, the statutory objectives of ss. 15.2 and 17(4.1) are virtually identical and any “differences in language” are very minor and provide no foundation for keeping the analyses under these two provisions “distinct” in relation to the weight to be given to the parties’ agreement. While the “change” threshold specified in s. 17 does not apply to initial orders under s. 15.2 , this difference in the statutory language provides no basis for the conclusion that the weight to be given the parties’ agreement is different on variation applications than on initial applications, as a careful reading of Miglin bears out. Rather, the parties’ agreement is critical evidence of what they actually or ought reasonably to be taken to have contemplated at the time. On an application to vary a support order that incorporates support provisions of the parties’ comprehensive, final separation agreement under s. 17 , the court must balance the goal of preserving autonomy and certainty with ensuring the support arrangements are in substantial compliance with the overall objectives of the Act. If a material change is identified, the agreement is also to be considered in determining what variation is justified. Judges making variation orders under s. 17 should limit themselves to making the appropriate variation and should not make a fresh order unrelated to the existing one.
Here, the Court of Appeal erred in finding that there had been a material change since the making of the spousal support order that would justify a variation. The parties reached a comprehensive agreement that they intended would be a final settlement of all of the outstanding issues between them. As it provided for spousal support that was not time-limited or subject to any review mechanism and was indexed, the fact that the wife would not seek employment outside the home cannot be viewed as a circumstance that departed from the reasonable outcomes anticipated by the parties in framing the agreement.
Cases Cited
By Abella and Rothstein JJ.
Applied: Willick v. Willick, [1994] 3 S.C.R. 670; G. (L.) v. B. (G.), [1995] 3 S.C.R. 370; considered: Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303; distinguished: Pelech v. Pelech, [1987] 1 S.C.R. 801; Richardson v. Richardson, [1987] 1 S.C.R. 857; Caron v. Caron, [1987] 1 S.C.R. 892; referred to: Moge v. Moge, [1992] 3 S.C.R. 813; Marinangeli v. Marinangeli (2003), 66 O.R. (3d) 40; P. (S.) v. P. (R.), 2011 ONCA 336, 332 D.L.R. (4th) 385; Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920; Hickey v. Hickey, [1999] 2 S.C.R. 518.
By Cromwell J.
Applied: Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303; considered: Willick v. Willick, [1994] 3 S.C.R. 670; G. (L.) v. B. (G.), [1995] 3 S.C.R. 370; distinguished: Pelech v. Pelech, [1987] 1 S.C.R. 801; Richardson v. Richardson, [1987] 1 S.C.R. 857; Caron v. Caron, [1987] 1 S.C.R. 892; referred to: Oakley v. Oakley (1985), 48 R.F.L. (2d) 307; Kehler v. Kehler, 2003 MBCA 88, 177 Man. R. (2d) 135; L. (H.) v. L. (M.H.), 2003 BCCA 484, 19 B.C.L.R. (4th) 327; Ambler v. Ambler, 2004 BCCA 492, 5 R.F.L. (6th) 229; Spencer v. Spencer, 2005 SKQB 116, 261 Sask. R. 150; Turpin v. Clark, 2009 BCCA 530, 4 B.C.L.R. (5th) 48; Droit de la famille — 103038, 2010 QCCA 2074, [2010] R.D.F. 647; Templeton v. Templeton, 2005 ABCA 133, 363 A.R. 392; Kemp v. Kemp, [2007] O.J. No. 1131 (QL); Stones v. Stones, 2004 BCCA 99, 195 B.C.A.C. 41; Innes v. Innes (2005), 199 O.A.C. 69.
Statutes and Regulations Cited
Divorce Act, R.S.C. 1985, c. 3 (2nd Supp .), ss. 15.2 [ad. S.C. 1997, c. 1, s. 2], 17.
Authors Cited
D.‑Castelli, Mireille, et Dominique Goubau. Le droit de la famille au Québec, 5e éd. Québec: Presses de l’Université Laval, 2005.
Hovius, Berend, and Mary‑Jo Maur. Hovius on Family Law: Cases, Notes and Materials, 7th ed. Toronto: Carswell, 2009.
McLeod, James G. Annotation to Ambler v. Ambler (2004), 5 R.F.L. (6th) 229.
McLeod, James G. Annotation to Dolson v. Dolson (2004), 7 R.F.L. (6th) 25.
Mnookin, Robert H. “Divorce Bargaining: The Limits on Private Ordering” (1985), 18 U. Mich. J.L. Ref. 1015.
Payne, Julien D., and Marilyn A. Payne. Canadian Family Law, 3rd ed. Toronto: Irwin Law, 2008.
Pineau, Jean, et Marie Pratte. La famille. Montréal: Thémis, 2006.
APPEAL from a judgment of the Quebec Court of Appeal (Rochon, Morissette and Hilton JJ.A.), 2010 QCCA 793 (CanLII), SOQUIJ AZ-50629973, [2010] Q.J. No. 3531 (QL), 2010 CarswellQue 15612, affirming in part a decision of Courteau J., 2009 QCCS 3389 (CanLII), SOQUIJ AZ-50567722, [2009] Q.J. No. 7617 (QL), 2009 CarswellQue 7646. Appeal allowed.
Miriam Grassby and Sylvie Leduc, for the appellant.
Donald Devine and Tamar Ajamian, for the respondent.
Anne‑France Goldwater and Robert Leckey, for the interveners.
The judgment of Binnie, LeBel, Deschamps, Abella and Rothstein JJ. was delivered by
Abella and Rothstein JJ. —
Introduction
[1] This appeal concerns a cross-application by L.S. to vary a court order dated May 13, 2003, requiring him to pay spousal support to his former wife, L.M.P. The question before us is how to approach an application for variation of a spousal support order under s. 17(4.1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp .), where the support terms of an agreement have been incorporated into the order. It also requires us to consider if the approach differs from initial applications for spousal support under s. 15.2 .
[2] The wife asks this Court to overturn the decision of the trial court and Quebec Court of Appeal, which had varied the amount of support in the original 2003 order and held that the husband’s support obligations would cease as of August 31, 2010. The trial and appeal courts accepted the husband’s argument that spousal support should be terminated because the wife is capable of working and has an obligation to become self-sufficient.
[3] For the reasons that follow, we would allow the appeal. We agree with the wife that there has been no material change of circumstance since the order was made and that there was therefore no basis on which to vary it under s. 17(4.1) of the Divorce Act .
Background
[4] Shortly after the parties married in 1988, the wife learned that she had multiple sclerosis. The husband was at all times aware of her condition, both during and after their marriage. The wife has not worked since her diagnosis, and has been receiving permanent disability benefits from her former employer’s health insurance plan. Throughout the marriage the husband pursued his career outside the home, while the wife looked after the household and children. The parties separated in April 2002 and were divorced on May 13, 2003.
[5] On April 30, 2003, the parties entered into a “Consent to Judgment on Provisional Measures and Accessory Measures”. Each was represented by counsel when they entered into this comprehensive agreement dealing with the issues arising from their separation. The order dated May 13, 2003, incorporated the agreement. Among its terms, the order included a provision for indexed spousal support payable by the husband to the wife in the initial amount of $3,688 per month.
[6] The preamble to the order states that the parties took into account the criteria set out in s. 15.2(4) of the Divorce Act and those set out in s. 15.2(6) . The order does not specify a termination date for the payment of spousal support, nor does it make any reference to the wife seeking employment.
Judicial History
[7] The present dispute arose in 2007 when the wife applied under s. 17 of the Divorce Act to vary the order, seeking a retroactive and prospective increase of child support in accordance with the Quebec Child Support Guidelines. In response, the husband brought a motion to vary, also under s. 17 of the Divorce Act , seeking both a reduction and, ultimately, a cancellation of spousal support on the grounds that there was a change in his own financial circumstances. This argument was rejected by the trial judge. The husband also argued that the wife was able to work outside the home and ought to make efforts to find employment. He did not argue that this was a change since the time of the original order, but rather appears to have argued that the wife was always capable of working outside the home, even during the marriage.
[8] The trial judge, Courteau J., stated that the task before her was to “determine if [the wife] is able to work outside the home and if she should attempt to do so”. Both parties led expert evidence with respect to the wife’s ability to work. The wife’s expert was of the view that she was unable to work; the husband’s expert came to the opposite conclusion. The trial judge found that the experts agreed that “there has been little or no progression of the illness since the initial episodes, 19 years ago”. She also concluded that the wife’s condition was not as serious as she made it out to be. She was therefore able to work outside the home. The trial judge made no finding about whether this represented a material change of circumstance.
[9] Despite the absence of such a finding, the trial judge reduced spousal support from $4,294.48 per month to $3,000 per month from July 23, 2009, until February 28, 2010. A further reduction to $2,000 per month was ordered from March 1, 2010, until August 31, 2010. No spousal support was ordered after that date. The trial judge ordered that if the wife wanted spousal support after that date, she would have the burden of showing the court what efforts she had made to seek employment.
[10] The wife appealed, arguing that the trial judge erred in varying spousal support without having found a material change of circumstance as required by s. 17 of the Divorce Act . Writing for a unanimous court, Rochon J.A. rejected the wife’s appeal and ruled that even if the trial judge had not explicitly mentioned the existence of a material change, her approach respected the requirements of s. 17 . He accepted the trial judge’s finding that the wife was able to work and concluded that there was no basis for interfering with it.
[11] Rochon J.A. also held that the passage of time, accompanied by a failure to become (or to attempt to become) self-sufficient can give rise to a material change of circumstances. The absence of a time limitation in the support agreement incorporated into the order could not relieve the payee of her obligation to become self-sufficient.
[12] As a result, a material change of circumstance could be inferred and the trial judge had made no error when she reduced and terminated the spousal support.
[13] Even though he dismissed the wife’s appeal, Rochon J.A. nonetheless concluded that the trial judge’s second reduction in support (to $2,000 per month) should not have been ordered. In his view, a reduction to $3,000 per month until the termination of support on August 31, 2010, was appropriate.
Analysis
[14] For sound policy reasons, family law permits and encourages separating spouses to work out their own arrangements through the use of separation agreements (Berend Hovius and Mary-Jo Maur, Hovius on Family Law: Cases, Notes and Materials (7th ed. 2009), at p. 783). Agreements are desirable because individuals should largely be free to order their lives as they wish; because “the parties themselves are in the best position to evaluate the comparative advantages of alternative arrangements”; and because a negotiated settlement avoids the significant personal and financial costs of litigation (Robert H. Mnookin, “Divorce Bargaining: The Limits on Private Ordering” (1985), 18 U. Mich. J.L. Ref. 1015, at pp. 1018-19).
[15] At the same time, contract law principles are not rigidly applied in the family law context. Because a separation may result in dramatic life changes and emotional stress, Parliament has decided through the Divorce Act that these circumstances give rise to the possibility that the ability of separating spouses to realistically and objectively assess their current and future needs and preferences can be impaired. It also goes without saying that the economic terms of spousal support agreements can affect third parties, such as the children of the relationship. For these reasons, the Divorce Act authorizes courts to vary the spousal support terms, either on an initial application for support under s. 15.2 , or on an application to vary an existing court order under s. 17 , whether or not that order incorporates a spousal support agreement.
[16] Under the 1968 Divorce Act , spousal support agreements, while not immune from variation by the courts, were not easily disturbed. This limited approach found expression in the Pelech trilogy which reflected the self-sufficiency and “clean break” theories of spousal support then prevailing, emphasized finality and certainty, and required that there be a radical change in circumstances that is causally connected to the marriage before the terms of an agreement could be varied (Pelech v. Pelech, [1987] 1 S.C.R. 801, Richardson v. Richardson, [1987] 1 S.C.R. 857, and Caron v. Caron, [1987] 1 S.C.R. 892).
[17] The replacement of the 1968 legislation with the 1985 Divorce Act led this Court in Moge v. Moge, [1992] 3 S.C.R. 813, to reject the clean break theory of support that underlay the decisions in the Pelech trilogy. This revised conceptual framework for support led this Court in Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, to reject the narrow Pelech standard of allowing a variation from a spousal support agreement only in circumstances where a radical change connected to the marriage could be shown.
[18] Bastarache and Arbour JJ., for the majority in Miglin, acknowledged the importance of taking a fairly negotiated agreement into account:
. . . we believe that a fairly negotiated agreement that represents the intentions and expectations of the parties and that complies substantially with the objectives of the Divorce Act as a whole should receive considerable weight. [para. 4]
But they adopted a less exacting threshold for when courts could vary spousal support agreements in an initial application for support under s. 15.2 than had prevailed under the Pelech trilogy, concluding that its strict standard was no longer applicable and was “not appropriate in the current statutory context” (paras. 47 and 89). The new test they delineated required instead that the applicant “clearly show that, in light of the new circumstances, the terms of the agreement no longer reflect the parties’ intentions at the time of execution and the objectives of the Act” (para. 88).
[19] Significantly, the Court also concluded that “the importance given to self-sufficiency and a ‘clean break’ in the jurisprudence relying on the [Pelech] trilogy is not only incompatible with the new Act, but too often fails to accord with the realities faced by many divorcing couples” (para. 39). The Divorce Act , they therefore concluded, creates a statutory override in s. 15.2 which authorizes courts to make an initial order which may be at odds with the terms of the agreement if those terms do not comply with the objectives of the Act.
[20] In order to balance the parties’ intentions with the objectives of the Divorce Act , the Court in Miglin outlined a two-stage test for initial support orders under s. 15.2 . The first step examines the process leading to and the substance of the agreement. The second requires a determination of “the extent to which enforcement of the agreement still reflects the original intention of the parties and the extent to which it is still in substantial compliance with the objectives of the Act” (para. 87). This addresses the direction in s. 15.2(4) (c) of the Divorce Act that on an initial application for support, among other factors, a court shall consider “any order, agreement or arrangement relating to support of either spouse”.
Section 17 Variation
[21] This brings us to the role of such agreements under s. 17 of the Act. Unlike the question that confronted the Court in Miglin, this appeal concerns an application under s. 17 of the Divorce Act to vary an existing spousal support order where there had been a spousal support agreement prior to the section 15.2 order. Section 17 authorizes a court to vary, rescind or suspend prior orders (s. 17(1) ), defines the factors allowing for variation (s. 17(4.1) ) and sets out the objectives such a variation should serve (s. 17(7) ). These provisions state:
17. (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,
(a) a support order or any provision thereof on application by either or both former spouses; or
(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.
. . .
(4.1) [Factors for spousal support order] Before the 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, and, in making the variation order, the court shall take that change into consideration.
. . .
(7) A variation order varying a spousal support order should
(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;
(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.
[22] While the objectives of the variation order are virtually identical in s. 17 to those in s. 15.2 dealing with an initial support order, the factors to be considered in ss. 17(4.1) and 15.2(4) are significantly different. Section 17(4.1) sets out “a change in the . . . circumstances” of the parties as the sole factor. On initial support orders, on the other hand, the factors are as follows:
15.2 . . .
(4) In making an order under subsection (1) [for spousal support] or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
[23] In other words, there are differences between what a court is directed to consider in making an initial support order and on a variation of that order. Notably, unlike on an initial application for spousal support under s. 15.2(4) (c), which specifically directs that a court consider “any order, agreement or arrangement relating to support of either spouse”, s. 17(4.1) makes no reference to agreements and simply requires that a court be satisfied “that a change in the condition, means, needs or other circumstances of either former spouse has occurred” since the making of the prior order or the last variation of that order. Because of these differences in language, it is important to keep the s. 15.2 and s. 17 analyses distinct.
[24] On an application under s. 15.2, the court is expressly concerned with the extent to which the terms of an existing agreement should be incorporated into a first court order for support. On an application under s. 17 , on the other hand, the court must determine whether to vary or rescind that support order because of a change in the parties’ circumstances.
[25] Contrary to what our colleague Cromwell J. suggests, the majority in Miglin recognized that the different language employed by Parliament in ss. 15.2 and 17 required a different approach to initial and variation applications. At para. 61, Bastarache and Arbour JJ. state:
We disagree . . . with [the] importation of the “material change” test developed for s. 17 of the Act (see Willick [[1994] 3 S.C.R. 670]) into s. 15.2 in respect of pre-existing agreements. As we noted earlier, the statutory language simply does not support this. Whereas s. 17 of the Act directs the court to satisfy itself that a change has occurred, s. 15.2 respecting initial support applications does not. Rather, s. 15.2(4) requires the court to consider the length of cohabitation, the roles of the parties during the marriage, and any orders, agreements or arrangements. This explicit direction cannot be avoided, cast, as it is, in mandatory language.
[26] We recognize that some confusion has arisen with respect to the treatment of support agreements under s. 17 based on the majority’s suggestion at para. 91 of Miglin in obiter that
it would be inconsistent if a different test applied to change an agreement in the form of an initial order under s. 15.2 and to variation of an agreement incorporated into an order under s. 17 .
[27] In our respectful view, the reference to consistency between orders under ss. 15.2 and 17 referred to at para. 91 of Miglin is best understood by the explanation given at para. 62 of Miglin:
As we shall explain below, consistency between treatment of consensual agreements incorporated into orders and those that are not is achieved another way. It is achieved when judges making variation orders under s. 17 limit themselves to making the appropriate variation, but do not weigh 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.
Where the parties entered into a mutually acceptable agreement, the agreement is not ignored under either s. 15.2 or s. 17 . However, its treatment will be different because of the different purposes of each provision.
[28] The approach developed in Miglin, then, was responsive to the specific statutory directions of s. 15.2 of the Divorce Act and should not be imported into the analysis under s. 17 .
A. The Threshold for Variation
[29] In determining whether the conditions for variation exist, the threshold that must be met before a court may vary a prior spousal support order is articulated in s. 17(4.1) . A court must consider whether there has been a change in the conditions, means, needs or other circumstances of either former spouse since the making of the spousal support order.
[30] In our view, the proper approach under s. 17 to the variation of existing orders is found in Willick v. Willick, [1994] 3 S.C.R. 670, and G. (L.) v. B. (G.), [1995] 3 S.C.R. 370. Like the order at issue in this case, Willick (dealing with child support) and G. (L.) (dealing with spousal support) involved court orders which had incorporated provisions of separation agreements. Both cases were decided under s. 17(4) of the Divorce Act , the predecessor provision to s. 17(4.1) .
[31] Willick described the proper analysis as requiring a court to “determine first, whether the conditions for variation exist and if they do exist what variation of the existing order ought to be made in light of the change in circumstances” (p. 688). In determining whether the conditions for variation exist, the court must be satisfied that there has been a change of circumstance since the making of the prior order or variation. The onus is on the party seeking a variation to establish such a change.
[32] That “change of circumstances”, the majority of the Court concluded in Willick, had to be a “material” one, meaning a change that, “if known at the time, would likely have resulted in different terms” (p. 688). G. (L.) confirmed that this threshold also applied to spousal support variations.
[33] The focus of the analysis is on the prior order and the circumstances in which it was made. Willick clarifies that a court ought not to consider the correctness of that order, nor is it to be departed from lightly (p. 687). The test is whether any given change “would likely have resulted in different terms” to the order. It is presumed that the judge who granted the initial order knew and applied the law, and that, accordingly, the prior support order met the objectives set out in s. 15.2(6). In this way, the Willick approach to variation applications requires appropriate deference to the terms of the prior order, whether or not that order incorporates an agreement.
[34] The decisions in Willick and G. (L.) also make it clear that what amounts to a material change will depend on the actual circumstances of the parties at the time of the order.
[35] In general, a material change must have some degree of continuity, and not merely be a temporary set of circumstances (see Marinangeli v. Marinangeli (2003), 66 O.R. (3d) 40, at para. 49). Certain other factors can assist a court in determining whether a particular change is material. The subsequent conduct of the parties, for example, may provide indications as to whether they considered a particular change to be material (see MacPherson J.A., dissenting in part, in P. (S.) v. P. (R.), 2011 ONCA 336, 332 D.L.R. (4th) 385, at paras. 54 and 63).
[36] The threshold variation question is the same whether or not a spousal support order incorporates an agreement: Has a material change of circumstances occurred since the making of the order? (See Willick; G. (L.); Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920.)
[37] This does not mean that the incorporated agreement is irrelevant. As Sopinka J. observed in Willick, “Where . . . the agreement is embodied in the judgment of the court, it is necessary to consider what additional effect is to be accorded to this fact” (p. 687).
[38] The agreement may address future circumstances and predetermine who will bear the risk of any changes that might occur. And it may well specifically provide that a contemplated future event will or will not amount to a material change.
[39] Parties may either contemplate that a specific type of change will or will not give rise to variation. When a given change is specified in the agreement incorporated into the order as giving rise to, or not giving rise to, variation (either expressly or by necessary implication), the answer to the Willick question may well be found in the terms of the order itself. That is, the parties, through their agreement, which has already received prior judicial approval, have provided the answer to the Willick inquiry required to determine if a material change has occurred under s. 17(4.1) . Even significant changes may not be material for the purposes of s. 17(4.1) if they were actually contemplated by the parties by the terms of the order at the time of the order. The degree of specificity with which the terms of the order provide for a particular change is evidence of whether the parties or court contemplated the situation raised on an application for variation, and whether the order was intended to capture the particular changed circumstances. Courts should give effect to these intentions, bearing in mind that the agreement was incorporated into a court order, and that the terms can therefore be presumed, as of that time, to have been in compliance with the objectives of the Divorce Act when the order was made.
[40] Alternatively, an agreement incorporated into an order may include a general provision stating that it is subject to variation upon a material change of circumstances, such as the agreement and subsequent order in Hickey v. Hickey, [1999] 2 S.C.R. 518. In such a case, the agreement incorporated into the s. 15.2 order does not expressly give the court any additional information as to whether a particular change would have resulted in different terms if known at the time of that order. The presence of such a provision will require a court to examine the terms of the s. 15.2 order and the circumstances of the parties at the time that order was entered into to determine what amounts to a material change.
[41] Finally, an agreement incorporated into a s. 15.2 order may simply include a general term providing that it is final, or finality may be necessarily implied. But even where an agreement incorporated into an order includes a term providing that it is final, the court’s jurisdiction under s. 17 cannot be ousted (Miglin; G. (L.); Leskun). A provision indicating that the order is final merely states the obvious: the order of the court is final subject to s. 17 of the Divorce Act . Courts will always apply the Willick inquiry to determine if a material change of circumstances exists.
[42] Ultimately, courts are tasked with determining if a material change of circumstances has occurred so as to justify a variation of a s. 15.2 order under s. 17 . The analysis is always grounded in the actual circumstances of the parties and the terms of the s. 15.2 order; what meaning a court will give any general statement of finality found in an order will be a question to be resolved on that basis. As we have explained, in some situations, the agreement incorporated into the order may help shape what is meant by a “material change of circumstances”. Where a s. 15.2 order deals with a specific change, it assists courts by answering the Willick inquiry through its terms. Conversely, when the order is general, or simply purports to be final, these less specific terms provide less assistance to courts in answering the Willick inquiry. Sometimes, in such cases, the circumstances of the parties may be such that courts will give little weight to a general statement of finality and conclude that a material change exists. However, at other times, in such cases, the circumstances of the parties may also be such that the courts will give effect to a general statement of finality and conclude that a material change does not exist.
[43] An example is the simple case of a young couple who were only married a few months and who ended their marriage on essentially equal terms. A general statement of finality in an agreement incorporated into an order, coupled with these circumstances, should be given weight by a court