L.M.P. v. L.S.

L.M.P. v. L.S.

A variation under s.17(4.1) is permitted only upon a material change since the prior order per Willick; where a separation agreement was incorporated into a support order the prior order is presumed compliant and the inquiry focuses on whether the changed circumstance was contemplated by the parties and whether the support provision no longer substantially complies with Divorce Act objectives — here the wife's multiple sclerosis was known and contemplated so no material change occurred and the 2003 order must be restored.

Citation
2011 SCC 64
Parties
Appellant: L.M.P.; Respondent: L.S.; Intervener: Women’s Legal Education and Action Fund and DisAbled Women’s Network Canada
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
21 December 2011
Procedural Posture
Spousal Support Variation (divorce Act) / Appeal to the Supreme Court of Canada From Quebec Court of Appeal
Outcome
Appeal allowed; original 2003 spousal support order restored
Legal Topics
Variation of Spousal Support, Material Change of Circumstances, Incorporation of Separation Agreement Into Court Order
Source Language
English
Family Law Divorce Spousal Support Variation of Spousal Support Material Change of Circumstances Incorporation of Separation Agreement Into Court Order

Case Brief

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Parties

L.M.P.

Appellant

L.S.

Respondent

Women’s Legal Education and Action Fund and DisAbled Women’s Network Canada

Intervener

Procedural Posture

Spousal Support Variation (divorce Act) / Appeal to the Supreme Court of Canada From Quebec Court of Appeal

Legal Issues

  1. 1 What approach applies to s.17(4.1) variation where support terms of agreement are incorporated into an order?
  2. 2 Does the Miglin two‑stage analysis apply to s.17 variation proceedings and what weight is owed to a prior agreement?
  3. 3 Whether a material change of circumstances occurred to justify variation and termination of spousal support

Ratio Decidendi

A variation under s.17(4.1) is permitted only upon a material change since the prior order per Willick; where a separation agreement was incorporated into a support order the prior order is presumed compliant and the inquiry focuses on whether the changed circumstance was contemplated by the parties and whether the support provision no longer substantially complies with Divorce Act objectives — here the wife's multiple sclerosis was known and contemplated so no material change occurred and the 2003 order must be restored.

Court Disposition

Appeal allowed; original 2003 spousal support order restored

Orders

  • Appeal allowed with costs throughout
  • Indexed spousal support in the original 2003 order to continue and be effective retroactively to the date it was varied by the trial court