“The threshold question on a motion to change a spousal support order is set out in s. 17(4.1) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), which provides that before the court makes a variation order the court must satisfy itself that a change in the conditions, means, needs or other circumstances of either spouse has occurred since the making of the order, and in making the variation order, the court shall take that change into consideration.
Both parties agree that s. 17 of the Divorce Act allows the court to vary, rescind or suspend, prospectively or retroactively a support order or any provision thereof.
Where a motion to change is bought to vary a spousal support agreement incorporated into a court order there is a two-step analysis. First, has there been a material change in circumstances and second, if there has, what variation of the existing order ought to be made in light of those circumstances? A material change in circumstances is one, which if known at the time, would likely have resulted in different terms. To suggest that an agreement was unfair in the first place is inappropriate. The court is not to second guess the original agreement. Where an agreement is incorporated into an order it is presumed to comply with the objectives of the Divorce Act: L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, at paras. 31-33.”