(Originally published in 2012, updated in November 2018.)
Whether a spousal support “review” is warranted depends on the nature of the existing agreement or court order dealing with spousal support. There are different types of spousal support orders / agreements, the two primary ones being a review order/clause and a permanent order/clause.
Review vs. Permanent Orders
A review order or clause is often used when there is some uncertainty about whether spousal support should be continued, and, if so, in what amount. This is particularly relevant where a spouse has been out of the workforce for some time and it is uncertain what type of job/income s/he will be able to obtain as s/he returns to work after the parties’ relationship ends. Rather than making a permanent support arrangement, the parties can agree or a court can order that spousal support be reviewed within a certain period of time (e.g. after two years). It’s important to note that a review order / clause does not terminate once the review period has lapsed – it simply becomes reviewable by a court.
A permanent order means spousal support is ordered at a specific amount (e.g. $1,000 per month) and for a particular duration (e.g. 10 years). To alter (or “vary”) the amount or duration of support in these cases, there must be a material change in the condition, means, needs or other circumstances of either former spouse. A material change must be significant and long-lasting and cannot have been contemplated by either spouse at the time the order (or agreement) was made. An example of a material change is where the paying spouse becomes disabled and unable to work. This is a significant and long-lasting change that will likely impact the paying spouse’s income and ability to pay support. In this case, the payor spouse could apply to court to vary the amount and/or duration of support s/he is paying.
At a review application, unlike at an application to vary a permanent order/agreement, the court will take a fresh look at whether the payee spouse should continue receiving support. There is no obligation on either spouse to establish a material change in circumstances. The only requirement is that the review period set out in the order or agreement must have lapsed.
The BC Court of Appeal in McEachern v. McEachern confirmed that, once the conditions for a spousal support review (e.g. the review period has lapsed) are satisfied, the court should consider the following on an application to review spousal support:
- the condition, means, needs and other circumstances of each spouse, including the length of cohabitation, the functions performed by each spouse during cohabitation, and any order, agreement or arrangement relating to support;
- any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
- apportionment of any financial consequences arising from the care of any child of the marriage;
- relief of economic hardship resulting from the breakdown of the marriage;
- and promotion of economic self-sufficiency of each spouse within a reasonable period of time.
In summary, the court’s analysis will usually come down to two considerations:
- Has the payee spouse been adequately compensated for the economic/career disadvantages resulting from the breakdown of the marriage; and
- Does s/he still have financial need, meaning is s/he self-sufficient to the point where the two spouses’ quality of life are roughly equal?
If the answer to the first question is “no”, or to the second question is “yes”, the court will usually find that the receiving spouse is entitled to ongoing support. However, if the answer to the first question is “yes” or, to the second question is “no”, there is a good chance any ongoing support will be terminated.
Some final thoughts
A spousal support review can be costly if the spouses must return to court to have the issue of on-going support decided. Courts have generally discouraged spousal support reviews because a review clause does not provide the separating spouses with certainty and finality to their affairs.
If there is a lot of uncertainty about a spouse’s ability to pay support or the recipient spouse’s future income or ability to become self-sufficient, a review can be a useful way to “wait and see”, without having to prove a material change in circumstances later on if either spouse seeks to change the terms of the spousal support order/agreement.