Variation of Spousal Maintenance vs. Review of Spousal Maintenance
Pursuant to the Spousal Support Advisory Guidelines if a spouse’s age at separation plus the length of the marriage is greater than 65 the spousal support obligation is indefinite.
Indefinite spousal maintenance does not mean infinite spousal maintenance and the spousal maintenance obligation can be changed by the court at a later date. There are two different ways to change spousal maintenance.
The first is to apply to the court to vary an existing spousal maintenance court order. The test to vary an existing court order is to determine if there has been a material change in circumstances. The change has to be one that had it been known at the time of the order a different order would have resulted. It usually must be an ongoing change and not a temporary change.
The second way to change spousal maintenance is if the court order or agreement states that the spousal maintenance obligation is “reviewable” at some point in time or on the occurrence of a specific event. The Family Law Act states at section 169 that spousal maintenance is reviewable on the retirement of a spouse if that spouse starts receiving a pension:
Review of spousal support if pension benefits
169 (1) This section applies if an agreement or order does not address whether spousal support may be reviewed under section 168 [review of spousal support] and if
(a) a spouse who must pay spousal support starts receiving benefits under a pension, or
(b) a spouse who is entitled to receive spousal support becomes eligible to receive benefits under a pension.
(2) In the circumstances set out in subsection (1), a court, on application, may do one or more of the following:
(a) confirm an agreement or order respecting spousal support;
(b) set aside all or part of an agreement, or terminate an order, respecting spousal support;
(c) make an order under section 165 [orders respecting spousal support].
(3) In making an order under this section, the court is not required to consider any of the matters referred to in sections 164 [setting aside agreements respecting spousal support] and 167 (2) [changing, suspending or terminating orders respecting spousal support].1
If a review is conducted it is like a hearing de novo or a fresh look at all of the circumstances at that time. It is not necessary to demonstrate a material change in circumstances has occurred and the court will look at both entitlement and the appropriate quantum of ongoing spousal maintenance at that time.
1Family Law Act, [SBC 2011] CHAPTER 25