Life changes. Sometimes those changes necessitate legal changes. To family lawyers, certain life changes pose a challenging procedural issue, namely, whether to bring an application to vary or review. The Supreme Court of BC recently helped clarify the choice in Cotter v. Cotter, 2015 BCSC 1730.
In Cotter, father was terminated from his employment shortly before trial, resulting in orders that mother pay non-compensatory spousal support and child support to father. Trial occurred in April 2015 and a spousal support review date of July 1, 2015 was fixed.
Father’s Employment Insurance had run out. He had no new employment by the review date and consequently asked mother for increased child and spousal support. Mother declined and alleged he was voluntarily unemployed.
Father made two applications to Supreme Court, which were unsuccessful, and appealed to the Court of Appeal, which was also unsuccessful. Undeterred, father returned to the Supreme Court with the present application.
Mr. Justice Greyell articulated the issues as follows:
- Is this an application to vary or review?
- If to vary, is there a material change in circumstances?
- If for review, should there be a hearing de novo?
Family lawyers must be aware that applications to vary and for review are fundamentally different.
Variation is governed by Divorce Act s. 17 which, essentially, requires a material change in condition, means, needs, or other circumstances since the last order was made. Section 167 of the Family Law Act is generally consistent with section 17.
The Supreme Court of Canada gave some guidance on the material change of circumstances test in Willick v. Willick,  3 S.C.R. 670, stating:
[a material change is] a change that, if known at the time, would likely have resulted in different terms… if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation.
Mr. Justice Greyell cited L.M.P. v. L.S., 2011 SCC 64 for the propositions that the analysis must focus on the prior order and the circumstances in which it was made, and the material change must generally have some degree of continuity and not merely be a temporary set of circumstances.
He also cited the recent Court of Appeal decision of Dedes v. Dedes, 2015 BCCA 194:
the test for material change is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the order was entered by agreement. A function of the material change threshold is to prevent parties from re-litigating issues that were already considered and rejected; in such cases, an application to vary would amount to an appeal of the original order…
Applications for review are governed by sections 168 of the FLA and 15.2(3) of the Divorce Act, both of which allow or require the parties to return to court for review. These orders are called review orders, and the Supreme Court of Canada welcomed such orders in Leskun v. Leskun, 2006 SCC 25. Review orders should be used where there is a genuine and material uncertainty at the time of the original trial regarding the spouses’ financial situation in the near future.
The Court of Appeal added, in Morck v. Morck, 2013 BCCA 186, that the applicant need not establish a material change of circumstances on an application to review because it is a hearing de novo. This principle is embedded in section 168(3) of the FLA.
With respect to drafting a review clause, it should be as precise as possible regarding what is subject to review, according to Jordan v. Jordan, 2011 BCCA, 518. Of course, it is far less costly and time consuming to institute a review date in the first instance.
In the end, Mr. Justice Greyell determined that father had, in substance, applied for review. He was self-represented. The trial judge ordered review after 15 months. The Supreme Court Family Rules promote a just, speedy, and inexpensive process. These factors engendered Mr. Justice Greyall’s conclusion. Father’s income was imputed and mother was awarded her costs.
Cotter is an important decision because it shows us how to determine whether to bring an application to vary or application for review, and how to approach those applications.
Jeffrey L. Hartman