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Stobo v. Stobo: Changing a Spousal Support Agreement

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Applicants must ensure that they utilize the proper procedure for making changes to a spousal support agreement. The correct procedure will depend on a number of factors, such as whether spousal support is payable under the terms of a Divorce Order or pursuant to an agreement between the parties.

The importance of proper procedure is illustrated by Stobo v. Stobo, 2016 ONSC 5805. The ex-husband argued that since the spousal support agreement had been registered with the Court pursuant the Ontario Family Law Act, it became an order of the Court capable of variation pursuant to s.17 of the Divorce Act. Doyle J. found that where the Divorce Order was silent as to any corollary relief, the Court could not make changes to a spousal support agreement using s. 17 of the Divorce Act. Instead, the proper procedure is to commence an originating application for spousal support under s. 15(2) of the Divorce Act.

Separation agreement registered under the Family Law Act

The parties in Stobo v. Stobo married in 1978, separated in 2002, and were divorced on February 15, 2010. The Divorce Order did not provide for any corollary relief. Support had been addressed in a comprehensive separation agreement dated October 23, 2006 which provided for a final property settlement, child support, and spousal support (the “Separation Agreement”). The Separation Agreement was not incorporated into the Divorce Order or any other order but was registered with the court under the Ontario Family Law Act. (Like the Ontario legislation, the BC Family Law Act permits the filling of spousal support agreements. Once filed in court, such an agreement can be enforced under the Family Law Act and the Family Maintenance Enforcement Act as if it were an Order of the Court.)

Making changes to a spousal support agreement without intervention of the Court

When the parties separated in January 2002, Mr. Stobo’s income from his law practice was $150,000 per annum. In the Separation Agreement he agreed to pay $6500 per month as spousal support with an annual cost-of-living increase. Mr. Stobo’s income increased in 2008, so the parties amended the Separation Agreement to increase spousal support to $7000 per month. By August 2014, further increases to his income led to another amendment to the Separation Agreement, which increased the amount of spousal support to $8615 per month.

Parties unable to agree to further changes to spousal support agreement

In 2015, Mr. Stobo had an involuntary reduction of his income as a result of the change in the points that were allotted to him in his law firm. Immediately upon receiving notice of the reduction of his income, he advised Mrs. Stobo and asked for his decrease of spousal support payments. This reduction of income continued in 2016. Mrs. Stobo did not agree to a reduction in spousal support.

Application to make changes to spousal support agreement

Relying on s. 17 of the Divorce Act, Mr. Stobo applied to the Court for a reduction in spousal support payable pursuant to the agreement on the basis of a material change of circumstances, namely, a 19% involuntary income reduction. He did not apply under s. 15.2 of the Divorce Act. Mrs. Stobo, on the other hand, filed a response requesting a dismissal of Mr. Stobo’s motion. She did not bring an application under s. 15.2 of the Divorce Act.

Procedure for making changes to a spousal support agreement

Doyle J. held that s. 17 of the Divorce Act could not apply, as there was no order under the Divorce Act to vary. An agreement registered pursuant to the Family Law Act (“FLA”) does not become an order under the Divorce Act:

[40]           No jurisprudence or authority was provided by the Applicant, which supports the notion that the Court can consider an agreement registered with the FLA as an order under the Divorce Act capable of variation under s. 17.

[41]           The mere fact that the FLA allows a registered agreement to be considered an order does not transpose it into a support order for the purposes of the federal legislation.

[42]           Therefore, for corollary relief, the parties must proceed under s. 15.2 of the Divorce Act to determine the quantum of the Applicant’s obligation to pay spousal support.

Unfortunately, the Court could not entertain an application under s. 15.2 for corollary relief under the Divorce Act as neither party brought a corollary relief application pursuant to the Divorce Act. Neither party used the proper procedure to deal with the substantive issues. Doyle J. had no choice but to dismiss the motion, but added the provision that if the parties wished to preserve the litigation, the Court was prepared to accommodate counsel to determine the next step, including whether to amend pleadings on consent.

Take home point on making changes to a spousal support agreement

Proper procedure is imperative for making changes to a spousal support agreement. An applicant asking the Court to make changes to a spousal support agreement must ensure that the request for relief is commenced pursuant to the correct legislative provisions. Failure to use proper procedure will leave the Court unable to deal with the substantive issues.

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