“If minutes of settlement are incorporated into a court order, the order is to be varied having regard to s.17 of the Divorce Act.
In L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775 the Supreme Court of Canada considered the approach to an application to vary a spousal support order under s. 17(4.1), where the support terms of an agreement have been incorporated into a divorce order.
From L.M.P., I draw the following principles, which are applicable to this case:
a) the change referred to in s. 17(4.1) must have occurred since the making of the spousal support order sought to be changed: para. 29;
b) the onus is on the party seeking the variation to establish the change: para. 31;
c) relying on Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, the court held that the change in circumstances must be a material one that “if known at that time, would likely have resulted in a different term”: paras. 32 and 33;
d) what amounts to a material change will depend on the actual circumstances of the parties when the order in question was made: para. 34;
e) the material change must have some degree of continuity and not merely be a temporary set of circumstances: para. 35;
f) the agreement given effect to by the original order is to be considered: para. 37;
g) the degree of specificity of the terms contained in the order is important to the material change analysis: para. 39; and
h) where an agreement incorporated into an order implies finality, the court’s jurisdiction under s. 17 is not ousted by that agreement: para. 41.
The test for material change is not based on what one party knew or reasonably foresaw. Rather, the test is based on what the parties actually contemplated when they entered into the agreement: Dedes v. Dedes, 2015 BCCA 194, at para. 25. In other words, the change relied upon as being material is one that was not one considered, or taken into account, when the agreement was made. The court is to look back to consider what was previously taken into account.
A review of the terms of the order will assist in determining what was considered.”