“L.M.P v. L.S., 2011 SCC 64 (CanLII), [2011] 3 SCR 775 remains the leading authority for the correct approach to determine whether there has been a change in circumstances which warrants a review of a spousal support order under section 17(1) of the Divorce Act R.S.C., 1985, c.3 (2nd Supp.) (‘the Act”). The long established definition of a change in circumstances refers to a “material” change that “if known at the time would likely have resulted in different terms.” This definition, first found in Willick v Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, a child support variation was adopted for variations of spousal support in G.(L)v. B. (G), 1995 CanLII 65 (SCC), [1995] 3 S.C.R. 370. (See L.M.P. at para. 30).
A section 17 variation inquiry begins with the presumption that the existing order’s terms complied with the objectives of the Act when it was made. (See L.M.P.at para. 33). This means the initial focus of the inquiry is on the nature and sufficiency of the change to determine whether the threshold test for a variation consideration has been satisfied by the moving party. The change must be enduring. If the moving party discharges this threshold onus, then the context and magnitude of the change will shape the scope of the inquiry, as well as the remedy. In this sense, L.M.P. guides us away from a rigid approach, which describes the hearing as either de novo or not, towards a more fluid approach regarding the proper scope of the hearing, driven by the unique facts of each case. (See L.M.P.at para. 47).
As noted by the court in L.M.P., a parties’ agreement is not ignored under section 17 but its treatment will be different than in the context of an initial application under section 15(2) because of the different purposes for each provision. (See L.M.P. at para 27).”