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Epstein’s This Week in Family Law | Variation

Variation of spousal support and the foreseeability of material change discussed in recent court of appeal decision.

Epstein’s This Week in Family Law

By: Philip Epstein

Variation Application - Foreseeability of Material Change

Morigeau v. Moorey, 2015 CarswellBC 949 (B.C. C.A.): This appeal in the British Columbia Court of Appeal is from an order dismissing an application to vary spousal support under section 17 of the Divorce Act. The former wife at the time of the original support order had commenced a new relationship, but she was not living with her new partner. That was in 2011. By 2013, the wife had re-partnered with the same person with whom she was in a relationship at the time of the original divorce order. At the time of the settlement of the original order, the wife had indicated that she was in a new relationship, but was not residing with her new partner and was not sharing expenses. The Court of Appeal says that the husband focused on the wife’s re-partnering as the primary basis for requesting a change to the order although there were other factors as well in that her income had increased and the husband’s income had decreased.

The wife in the hearing below had relied on B. (G.) c. G. (L.), 15 R.F.L. (4th) 201 (S.C.C.) and the argument “if the matter which is relied on is constituting a change was known at the relevant time and it cannot be relied upon as a basis for variation”. The trial judge noted that the husband knew that the wife was seeing a third party, and thus found it was foreseeable that they would cohabit. Thus, the trial judge imported “foreseeability” into the analysis.

The trial judge relied on Willick, but also reviewed the other cases about re-partnering. The trial judge set out certain principles which the Court of Appeal said were correct. One of those principles was as follows:

If the applicant knew that the former spouse was seeing a third party and cohabitation was foreseeable at the time of the original order, cohabitation may not trigger a material change in circumstance: G.(L.) v. B. (G.), J.W.J.M v T.E.R.

Very respectfully, and for the reasons canvassed in my discussion in Dedes above, this is an incorrect statement of law, and incorrectly imports foreseeability into the analysis. The way in which the trial judge dealt with foreseeability, affirmed by the Court of Appeal, does not flow from Willick or other caselaw, and would make the test for material change almost impossible to meet. Of course, parties subsequent to a divorce may re-partner, and that is the case whether they are seeing the people at the time of the divorce or not.

Again, as set out in Dedes above, the issue should be whether the order actually contemplated and dealt with the issue of the wife re-partnering at the time that the order was made.

The trial judge concluded:

Immediately preceding the order, Ms. Morigeau attested about her new relationship that “[I do not] consider residing together” but acknowledged spending “significant time together”. In these circumstances, Ms. Morigeau’s subsequent cohabitation with the person she had been seeing for nine months was, in my opinion, foreseeable at the time the order was made. The changes in income are inconsequential. In the result, I find that there has not been a material change in circumstances.

This is the wrong test and it is in direct conflict with Dedes cited by the same court. I sometimes wonder whether the Court of Appeal judges in British Columbia actually talk to each other about their decisions, or circulate them, since this is not the first time we have conflicting decisions on important family law issues by the same court.

There may have been good and other valid reasons for dismissing this appeal because the support order below was compensatory and the wife’s re-partnering might well have not ended the husband’s obligation. However, on the primary issue, i.e. that it was foreseeable that the wife would cohabit with a new partner, and that this did not constitute a change of circumstances, is clearly wrong. Accordingly, this case should be approached with significant caution.

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