General
Can common-law spouses apply for spousal support?
Yes.
What is the "material change" test in L.M.P. v. L.P.?
As per L.M.P. v. L.P., the threshold of s. 17(4.1) of the Divorce Act requires that material change be:
(1) a "change in conditions, means, needs, or other circumstances of either former spouses since the making of the spousal support order."; and
(2) it must also "have some degree of continuity, and not merely be a temporary set of circumstances."
What is the name of the leading case for variation of spousal support?
L.M.S. v. L.P.
What is the name of the leading case for review of spousal support?
Leskun v. Leskun.
What happens if a payor's income is reduced?
The SSAG range for amount can easily be recalculated and support adjusted. In a variation proceeding, the income reduction would have to be large and ongoing enough to be a "material change".
Is there a "legal duty" for a spouse to become self-sufficient?
No. (Leskun v. Leskun).
What case does Rollie Thompson quote as having a more helpful definition of "material change"?
(100 bonus points for explaining what that definition is).
Carter v. Carter:
"Material change is "a change that is substantial, unforeseen and of a continuing nature".
What is required for the variation of a spousal support order?
To vary an order, there needs to be a "change in circumstances" that is considered a “material change”. (L.M.P. v. L.P.).
What section(s) in the Divorce Act outlines review orders?
Trick question! (100 bonus points if you caught this).
The review order is entirely a judicial creation.
Under s. 17(10) of the Divorce Act, what criteria does an applicant have to meet to order spousal support after its expiry?
(3 criteria)
(i) support must be "necessary to relieve economic hardship";
(ii) the hardship must arise from a material change; and
(iii) it must be a material change "that is related to the marriage".
What is the distinction between variation and review?
VARIATION: Variation is a process to change the terms of an existing spousal support order. This can include increasing, decreasing, or terminating support.
REVIEW: Review typically involves reassessing the existing support arrangement under specific circumstances.
Can "significant" changes always amount to a "material" change?
Not always.
If an agreement contains a variation clause (or a review clause) does this make the agreement a final agreement?
No.
Do reviews have a threshold requirement of a "material change"?
No.
Is a payor or recipient's remarriage or repartnering grounds for a reduction in spousal support?
Usually not.
Do the Spousal Support Advisory Guidelines apply to the determination of amount and duration on variation or review?
Yes, subject to concerns about entitlement issues.
What happens once a material change has been established?
Once a material change has been established, “[a] court should limit itself to making the variation which is appropriate in light of the change. The task should not be approached as if it were an initial application for support under s. 15.2 of the Divorce Act.” (L.M.P. v. L.P.).
Does the termination of child support constitute a ground for variation of spousal support?
Yes.
What is Lang J.A.'s opinion in Fisher v. Fisher on review orders?
Lang J.A. saw review orders as costly for the parties, not justified "unless it is strongly indicated on the unusual facts of a particular case."
What happens if a recipient has failed to make sufficient efforts to find employment or to increase their income?
A higher income can be imputed and the new SSAG range is calculated.
How many steps are in the "Miglin test" for overriding final spousal support agreements?
(100 bonus points if you can describe what they are).
Two.
Does the "Miglin test" apply in cases of variation and review?
No.
Is misconduct a relevant consideration in varying a spousal support order?
(100 bonus points for stating the relevant sections of the Divorce Act).
No.
When should courts use review orders?
Courts should only use review orders if there is genuine and material uncertainty at trial with regard to future financial position (Leskun v. Leskun).
What is the name of a term of an entitlement issue that can arise in cases of retirement?
(100 bonus points if you can describe what this term means).
"Double-dipping".