“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) 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).
The two sets of reasons in L.M.P., which concur in the result, diverge on the question of how the principles enunciated in Miglin v. Miglin, 2003 SCC 24 (CanLII), [2003] 1 S.C.R. 303 factor into the analysis. The approach in the majority opinion hones in on the differences between the legislative provisions applicable to initial applications for support, such as in Miglin, and those at play in the variation context. The majority conclude that the Miglin analysis, conducted under section 15(2) of the Act should not be imported into the analysis for variations under section 17. (See L.M.P. at paras. 22 to 28).
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 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. (See L.M.P. at para. 35) 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).
Kim argues that the principles in Hickey v. Prince, 2015 ONSC 5596 (Div. Ct.) apply to bar this review on the basis that early retirement is not material change in circumstances. In Hickey, the Divisional Court allowed an appeal where the motion judge erred in finding that the husband’s voluntary early retirement on a full pension constituted a material change in his income. The court held that the motion judge failed to consider the husband’s income earning capacity and his overall wealth in determining whether there was a material change in his condition, means, and other circumstances. The court concluded he was in good health and had the ability to continue to earn more than enough for the continuation of the wife’s existing support. In short, the Divisional Court concluded there was no material change in income earning capacity. The facts here are different as they relate to the threshold question.
As noted by the court in L.M.P., a parties’ agreement is not ignored under section 15(2) or section 17 but its treatment will be different because of the different purposes for each provision. (See L.M.P. at para. 27). Here the parties’ Minutes of Settlement were incorporated into a final order, subjecting their terms to the narrower scope of review under section 17. Paragraph 3 of the final consent order reads as follows: “The spousal support payable by the Respondent is subject to review in the event of a material change in circumstance, and a material change in circumstance may [emphasis added] include but not be limited to the retirement of the husband.”
The plain meaning of this provision is that the parties contemplated that Rick’s retirement might entitle him to trigger a review of the support obligation. Notably there is no reference to Kim’s retirement even though she was working full-time when the Minutes were formulated. It matters that the order has language which specifically contemplates Rick’s retirement. Given that there is no stipulated age of retirement in this provision and that Rick has, in fact, retired and is moving permanently to Mexico, I find that his circumstances have changed in a material way within the meaning of section 17. His new place of residence alone constitutes a material change in circumstances since he is moving to a jurisdiction which has no reciprocal support enforcement mechanism with Canada. This effectively deprives Kim of the benefit of an operative term in their current order, namely the ability to enforce it through the Family Responsibility Office.
That said, an affirmative answer to the question of whether the moving party has met the threshold test does not necessarily translate into an increase, decrease, suspension or termination of the obligation. It merely opens the door to further inquiry and a consideration of what order is required now, having regard to the objectives of section 17(7) of the Act.”