When two people in British Columbia decide to divorce, several financial considerations come into play. Notably, part of the divorce process typically entails that the parties divide their assets and debts and that spousal support be paid from one spouse to the other for a certain duration of time.

Although most people know that spousal support is generally payable by one party to the other in most circumstances, fewer are familiar with the process to undertake when one seeks to decrease or increase spousal support.

In this blog, we will explore the process to be followed when one wishes to have their spousal support increased or decreased, including who may seek such variation and the criteria considered by the court in assessing whether to grant such a request.

Wife Wins Substantial Financial Settlement; Husband Seeks Variation of Spousal Support

A recent British Columbia family court decision illustrates circumstances in which one party may seek a variation of a spousal support order. The case involved a couple entering a marriage-like relationship in 1987. After that, they had three children together and separated in June 2013. They were together for approximately 26 years.

The wife applied for spousal support in March 2019, and the court ordered the husband to pay the wife monthly spousal support of $1,700, retroactive to January 2016. No reasoning was provided in that judgment to substantiate how the court concluded that $1,700 was the appropriate amount to order, and no reference was made in the judgment to the provincial support guidelines.

The husband then commenced an application in 2023, seeking to vary the amount of spousal support payable to his ex-wife. The husband asserted that although he agreed his ex-wife was entitled to spousal support in some amount, she was not entitled to the same indefinitely, nor in amounts as high as ordered, given that her financial circumstances had changed considerably since the original order was issued. In particular, the husband noted that the ex-wife had received a substantial settlement in the interim year between when the order was made and the date of his application in 2023, and he argued that this amount should be included in the calculation of spousal support owed. He further contended that the order for spousal support should include an expiration date such that he would not be forced to work beyond retirement age simply to support his ex-wife.

What are the Laws Regarding Variation of Spousal Support?

Several pieces of legislation govern divorce and support orders in British Columbia, most notably the provincial Family Law Act, which applies to family law matters in the province of BC, and the federal Divorce Act, which governs divorces across Canada.

Section 17(1)(a) of the Divorce Act empowers the courts to make any order retrospectively or prospectively to vary an order for support. Importantly, section 17(4.1) dictates that to enact such a variation, the court must first be satisfied that there has been a change in either the means, needs, conditions or other circumstances of one of the former spouses since the original support order was issued. If either party has proved any such change, then the court must consider such changes when determining how the support order should be varied.

The Family Law Act contains a similar provision in section 167(2). However, that section further dictates that a court of this province is empowered to enact a variation of spousal support if it is satisfied that there is substantial evidence that was unavailable at the time the order was made that is now available or if it is discovered, after the order was made, that one of the spouses did not undertake to make complete financial disclosure (i.e., the order was issued based on information that was incorrect and/or incomplete).

Generally speaking, when seeking retroactive variation of an order for spousal support, the court will abide by the rule of three and will only order variation going back three years’ time. Thus, three years is considered the presumptive limit on retroactive variation. However, this rule is not set in stone. It may be avoided in certain circumstances, such as when the party who seeks variation has also engaged in obfuscation of their true financial circumstances to increase (or decrease, as the case may be, depending upon whether the party seeking the variation is the payor or the payee) the amount of spousal support payable.

Had the Wife’s Financial Circumstances Materially Changed?

The court reviewed the husband’s claim that the wife’s financial circumstances had materially changed in the years since the support order was issued in that she had received a substantial settlement (as a result of injuries she suffered in an accident) of more than $422,500, which included $35,000 in damages for past loss of earning capacity and $156,000 in damages for future loss of earning capacity.

After considering all of the applicable evidence, the court was satisfied that the fact that the wife had received a substantial judgment that entitled to her damages for past and future losses of income constituted a material change in the wife’s circumstances that the court must consider in evaluating her entitlement to spousal support. Moreover, the court was satisfied that the wife had underreported her 2019 income by more than 50 per cent, further bolstering the court’s position that it was appropriate to undertake a variation of the spousal support ordered in 2019.

Does the Presumptive Retroactive Limit of Three Years Apply in These Circumstances?

The court was satisfied that the ex-wife had repeatedly misrepresented her income in this case in that she failed to report her receipt of a substantial settlement that necessarily impacts the quantum of spousal support to which she is entitled. Moreover, the wife had underreported her income and disability payments in several years of reported income used to calculate her original entitlement, constituting “blameworthy conduct” in assessing appropriate support amounts. As such, the court declared that the wife could not rely upon the presumptive three-year limitation applicable to retroactive variation of spousal support awards. As such, the court decided that it was appropriate to vary the spousal support award issued in 2019 in its entirety, retroactive to its initial application date in 2016. Furthermore, the wife was ordered to include the amounts she had received in the settlement as past and future loss of income in the formulas used to calculate the appropriate amount of support.

Is the Support Award Indefinite or Term-Limited, Given the Parties’ Ages?

The court also considered the husband’s contention that he should not be subject to an indefinite award of spousal support such that he would be prevented from retiring simply because he had to earn enough income to both pay spousal support and maintain his own living expenses and agreed that it was inappropriate to award spousal support indefinitely beyond the age of retirement (65 years of age), given that many circumstances could arise that could impact the husband’s ability to work at that age. As such, the court ordered that the spousal support award be automatically reviewed on or after the husband’s birthday, on which he turned 65, in August of 2029. From that date forward, the court ordered that either party would be permitted to initiate a review of the spousal support order.

Experienced Vancouver Family Lawyers Advising On Support Payments

If you find yourself in a position wherein you believe that you are paying too much spousal support or, conversely, are not receiving enough spousal support, then you need experienced legal counsel to assist you in seeking a variation of the spousal support order. Fortunately, the family law lawyers at Meridian Law Group are here to help.

From our downtown Vancouver, BC offices, Meridian Law Group is proud to provide knowledgeable, capable legal advice to British Columbians from all over the province. Contact us today, either online or via telephone at (604) 687-2277, and one of our friendly, helpful staff will be pleased to schedule a confidential consultation.