“Having found material changes in circumstances, the motion judge went on to consider the four objectives that apply to a variation of spousal support under s. 17(7) of the Divorce Act, R.S.C., 1985, c.3 (2nd Supp.). He concluded as follows:
a) Any economic disadvantages to the appellant arising from the marriage breakdown had long passed. Indeed, the motion judge concluded that the wife had structured her post-divorce life in a way that allowed her to “live life to the fullest and not work”.
b) The appellant had suffered no adverse financial consequences as a result of the children’s care.
c) To the extent that the appellant was experiencing any financial hardship, it did not arise from the marriage but “from her own decision not to work”.
d) Although the motion judge acknowledged that there was no expectation that the wife would obtain employment now that she is in her 70’s, he concluded that she could rearrange or manage her assets, including residences in France and Panama, to “secure an increased income stream if desired.”
Having regard to those factors, the motion judge reduced the spousal support from $4,000 to $1 per month. This effectively amounted to a rescission of the support order.
In our view, the motion judge erred in that approach to the variation.
Conspicuously absent from his reasons is an acknowledgement that the original support order – assumed to itself be in compliance with the Divorce Act objectives – expressly provided for spousal support for life: “each and every month thereafter until the [appellant] dies.”
As Bastarache and Arbour JJ. said in Miglin v. Miglin, 2003 SCC 24 (CanLII), [2003] 1 S.C.R. 303, at para 62: “judges making variation orders under s. 17 limit themselves to making the appropriate variation, but do not weigh all the factors to make a fresh order unrelated to the existing one, unless the circumstances require the rescission, rather than a mere variation of the order”. (See also: L.M.P. v. L.S., 2011 SCC 64 (CanLII), [2011] 3 S.C.R. 775, at para. 47.) The fact is that the spousal support order reflected what had been agreed upon by the parties and that order was only one component of a larger agreement.”