Varying or Ending Spousal Support in BC

Retirement, a job loss, a new relationship or a recipient who is now self-supporting can all make an existing spousal support arrangement feel out of date. Many payors want to know how to stop paying; many recipients want to know whether support can be cut off.

The answer depends on the document you have. A court order and a written agreement are changed in different ways, and an order under the federal Divorce Act follows its own rules. Until something formal changes, the current terms keep running.

Start with the document: order or agreement, and under which law

Before anything else, find the paperwork and identify what it is:

• A Family Law Act order. Made by the BC Supreme Court or Provincial Court under BC's Family Law Act, often for unmarried spouses or married spouses who did not seek a divorce order for support.
• A Divorce Act order. Spousal support ordered in a divorce proceeding is changed under section 17 of the federal Divorce Act.
• A written agreement. A separation agreement or marriage agreement that deals with spousal support, whether or not it has been filed in court.

Each has its own route. Our spousal support guide explains how support is first set; this article deals with what happens afterwards.

Changing a court order: the change-in-circumstances test

Under section 167 of the Family Law Act, a court may change, suspend or terminate a spousal support order, going forward or back in time. It must first be satisfied that at least one of these exists, and take it into account:

• a change in the condition, means, needs or other circumstances of either spouse since the order was made;
• evidence of a substantial nature that was not available at the previous hearing; or
• a lack of financial disclosure by either spouse, discovered after the order was made.

The Divorce Act sets a similar threshold for divorce orders: a change in the condition, means, needs or other circumstances of either former spouse since the order or the last variation. A variation should still serve the same objectives as an original order, such as recognising economic disadvantage from the marriage, relieving economic hardship and, as far as practicable, promoting self-sufficiency within a reasonable time.

Changes people commonly raise include retirement, a significant drop or rise in either spouse's income, illness, and the recipient's new relationship. None of these ends support automatically. Expect the court to look closely at the evidence, at whether the change is real and lasting, and at whether it was already taken into account when the order was made.

Time-limited orders: restarting support is harder

If an order provided support for a set period or until a specified event, and that period has ended or the event has happened, getting support restarted is difficult. Both the Family Law Act and the Divorce Act allow it only if a new order is necessary to relieve economic hardship arising from a change in circumstances that is related to the relationship, and the changed circumstances would likely have produced a different order had they existed at the time.

For a recipient, that means raising concerns before a time-limited order runs out, not after.

Reviews built into an order or agreement

Many orders and agreements provide for a review, for example on a set date, after a period, or when a child finishes school. Section 168 of the Family Law Act allows this. On a review, the court can confirm support, end it, or make a new order, and it does not have to apply the change-in-circumstances test described above. The two-year time limits for starting a support claim do not apply to these reviews.

Pensions get special treatment. If an agreement or order does not say whether support may be reviewed, section 169 allows a review when the paying spouse starts receiving pension benefits or the recipient becomes eligible for them.

Changing or ending a spousal support agreement

An agreement can set its own rules. Section 163 of the Family Law Act lets spouses agree on when support will change or end, including if the recipient lives with someone else. If your agreement has a clause like that, it is usually the first place to look.

If the agreement is silent, or one spouse wants out of it, the test is stricter than for an order. For a written agreement with each signature witnessed, section 164 lets a court set aside or replace all or part of it only if:

• at the time it was made, a spouse failed to disclose relevant financial information, took improper advantage of the other's vulnerability, or did not understand the agreement, or there were other grounds that make a contract voidable; or
• the agreement is now significantly unfair, considering the time that has passed, changes in either spouse's circumstances, the spouses' intention to achieve certainty, how much they relied on it, and how well it meets the objectives of spousal support.

An application to set aside an agreement must generally be made within two years after the spouse first discovered, or reasonably ought to have discovered, the grounds. Married spouses may also be able to ask for support under the Divorce Act in a divorce proceeding, where the court must consider any existing agreement among other factors. Our article on separation agreements in BC covers when agreements are set aside more generally.

Child support, arrears and keeping payments current

Two other rules often come up:

• When child support ends. If spousal support was reduced or refused because child support had priority, a later reduction or end of child support is a change in circumstances that allows spousal support to be revisited.
• Arrears. Under section 174, a court can reduce or cancel arrears only if it would be grossly unfair not to, looking at the payor's efforts to comply and why the arrears cannot be paid. Stopping payment while you wait for a change is risky.

Practical first steps

• Read the terms. Look for review dates, end dates, termination events and how support was calculated.
• Gather current financial information. Recent tax returns and notices of assessment for both spouses, and evidence of the change you rely on.
• Try to agree. A new written agreement or a consent order is usually faster than a contested application. Mediation or another form of family dispute resolution can help.
• Apply if you cannot agree. File in the court that has the order, or start a claim if you are working from an agreement.

Want to change or end spousal support? Find out which test applies to you

Our family lawyers can review your order or agreement, explain whether a variation, review or set-aside application fits your situation, and negotiate new terms or represent you in court.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.