“Before a court can change either a child support or spousal support order it must be satisfied that a material change in circumstances has occurred. The wife, as the moving party, bears the burden of satisfying the court there has been such a material change in circumstances.
In Willick v Willick, 1994 CalII 28 (SCC) the Supreme Court of Canada defined “material change in circumstances” as a change that, “if known at the time, would likely have resulted in different terms”. On a motion to change, the court must not look behind the order the moving party seeks to change. It must proceed on the assumption the order was correct in terms of all the circumstances which existed at the time. As the court put it in Willick:
Therefore, in a variation proceeding, it must be assumed that, at the time it was made, the original child support order or the previous variation order accurately assessed the needs of the children having regard to the means of the parents. As such, the correctness of the previous order must not be reviewed during the variation proceeding.
Although Willick was decided before the Child Support Guidelines came into effect, it nevertheless still enunciates the appropriate principles in approaching a variation application. Therefore, I begin, as I must, with the assumption the Greer order was correct and appropriate in terms of all the circumstances at that time.
Here, the order in question was made in September of 2014. Thus, the wife must show there has been a material change in circumstances since then. Even though the order was made on consent, incorporating the parties’ Minutes of Settlement, the test for variation is no different than had it been made after a full hearing. More recently, the Supreme Court in LMP v LS, 2011 SCC 64 (CanLII) said that to be “material”, a change must be one that first, relates to something that was not either expressly addressed by the parties or that cannot be taken as having been in their contemplation, and second, results in the support provisions no longer being in substantial compliance with the Divorce Act’s objectives.
The threshold variation question is the same, whether or not the support order incorporates an agreement, as is the case here. That being said, where the parties have reached a final agreement and its terms are incorporated into a court order, the agreement’s terms must be given considerable weight in a later variation application. The agreement plays a central role in that kind of variation application, and Miglin principles are highly relevant to the process: 2003 SCC 24 (CanLII). Miglin principles deal with when parties should be held to the terms of an agreement they have signed, or, put another way, when parties may avoid the terms of an agreement they have signed. I will address these principles later in these reasons when I first deal with the question of a change to spousal support, and then with whether any aspect of child support should be changed.”