Issue: Under what conditions can a previous court order regarding spousal support be modified? Complete Decision.
The Facts: The parties were married 26 years. In 1991, after the children no longer resided with the wife, the husband was ordered to pay indexed spousal support of $2,000 per month. In 2006, he retired and sold the house where he and his second wife lived, realizing the sum of $2 million. In 2008, he applied to terminate spousal support because he no longer had employment income, that the market downturn had a negative impact on his assets, and that he had a son in university. The trial judge reduced the support to $1,500 per month unindexed. The Quebec Court of Appeal ordered that the support be gradually reduced and that payments terminate in September, 2010. The wife appealed to the Supreme Court.
Decision: The Supreme Court of Canada held that the party requesting a modification must establish that there has been a material change of circumstances since the previous court Order. To be material, a change must be one which, if known at the time, would likely have resulted in different terms to the existing Order. The husband was required to identify the change relied on and to provide sufficient evidence to enable a court to decide whether a material change in his circumstances had in fact occurred since the making of the 1991 Order. Since he produced no evidentiary foundation for a variation order, his application was dismissed. The Court reinstated the 1991 order to pay indexed support of $2,000 per month.