It was certainly a happy holiday season this past December for the former wife and appellant in the Supreme Court of Canada's recent case of L.M.P. v. L.S. The case clarified the test to use in a variation application under s. 17 of the Divorce Act.
The parties in L.M.P. were married in 1988 and separated some 14 years later. Shortly after the marriage, the wife was diagnosed with multiple sclerosis.
She didn't work during the marriage. In fact, the husband gave statements and information to various benefit providers attesting to his wife's inability to work in order to facilitate her receipt of benefits.
After the parties separated in 2002, they entered into a comprehensive separation agreement that provided for a monthly spousal support payment of $3,688 that was indexed with no review or termination date.
In 2003, they obtained an order for divorce that incorporated the support provisions of the separation agreement.
In 2007, the husband and the respondent, L.S., brought a variation proceeding under s. 17 of the act. The trial judge reduced the wife's support and then terminated it effective in 2010. The judge made no findings as to whether there was in fact a material change warranting a variation.
The wife then appealed. The Quebec Court of Appeal found that there had been a material change in circumstances. That change was the fact that the wife could work yet hadn't made any effort to do so. The court reversed the incremental decrease in support but affirmed the decision to terminate it in 2010.
The wife appealed further. The thrust of the issues before the top court was the approach to take on a variation application under s. 17 and, specifically, to what extent it ought to consider the parties’ separation agreement and its overall compliance with the objectives of the act.
Due to earlier comments by the court in Miglin v. Miglin, there was a belief that whether or not the proceeding was for a variation under s. 17 or it was for an initial order under s. 15.2 of the act, the ultimate decision needed to comply with the overall objectives of the legislation.
That included all of the elements under s. 15.2 that would require having regard to the terms of the parties' separation agreement.
But what we now have with L.M.P. is an indication from the Supreme Court that once there has been an order under the act, even if it's simply a consent order incorporating the terms of a prior separation agreement without actual findings by a court, the only question we're interested in is whether there has been a material change in circumstances.
Simply put, when seeking to vary an order under s. 17, the test is limited to whether there has been a material change since making it. This, the court confirmed, is a change that couldn't be or wasn’t reasonably foreseeable at the time of the agreement and subsequent order.
Clearly, there's much more need for caution now in negotiating and drafting support provisions, including the recitals upon which the parties base the support agreement.
Using this case as an example, a clause related to self-sufficiency or the best efforts to obtain employment may have been a catalyst for the court's findings to go in a different direction on the question of a material change.
Additionally, had the parties not incorporated the support terms of the agreement into the divorce order, the respondent could have had resort to the broader scope of the s. 15.2 analysis.
That would have allowed the court to truly consider the wife’s actual ability to obtain some form of employment after considering the circumstances of the marriage.
Ultimately, if there's any question as to whether a client may need to later review the terms of an agreement, we should be advising against incorporating the support terms into consent divorce orders and vice versa.
Finally, notwithstanding the clear direction that we don't have regard to the terms of agreements in conducting the s. 17 analysis, the recitals related to the issue of support can still be a relevant component of a future review as, according to L.M.P., they'll assist the court in a determination of what was within the contemplation of the parties.
That, however, seems to be the limit placed on when a court can look at the agreement under s. 17. Ultimately, it appears the decision may complicate the negotiation of agreements. However, as with any new guidance from the top court, we have yet to see if that's the case.
Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O’Brien Payne LLP in Ottawa. She can be reached at firstname.lastname@example.org.
[This article is reprinted with permission and first appeared in the January 30 2012 issue of The Law Times.]