“In my view, it was an error for the motion judge to hold that the appellant’s spousal support could not be varied because the Mossip Order did not contain a term permitting variation. While s. 15.2(4)(c) of the Divorce Act provides that the court shall consider “any order, agreement or arrangement relating to the support of either spouse”, this does not end the inquiry required. The appellant’s motion would have been an application under s. 17 of the Divorce Act to vary her spousal support. The Supreme Court in L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775 stated, at para. 41, “even where an agreement incorporated into an order includes a term providing that it is final, the court’s jurisdiction under s. 17 cannot be ousted”.
While the motion judge was entitled to make a factual finding that the evidence regarding the respondent’s income increase did not support a finding that there was a material change in circumstances, her analysis fails to ask whether the appellant faced a material change in circumstances. The court in L.M.P., at para. 29, is clear that the question of a material change applies to both parties:
In determining whether the conditions for variation exist, the threshold that must be met before a court may vary a prior spousal support order is articulated in s. 17(4.1). A court must consider whether there has been a change in the conditions, means, needs or other circumstances of either former spouse since the making of the spousal support order. [Italics in original; underlining added.]
Therefore, despite the existence of an order incorporating an agreement, a judge retains jurisdiction to consider whether a variation in support should be granted based on whether there has been a material change in the circumstances of either former spouse, and having regard to any existing agreement.”