BC Spousal Support: The Limits of Reviews
In family law litigation there is sometimes genuine and material uncertainty at the time of the original trial; where that level of uncertainty exists, a trial judge making a BC spousal support order can provide for a future review of all or an aspect of the order.
In a recent BC spousal support decision, the trial judge dealt with material uncertainty by ordering a future review of spousal support, but limited the review to amount (declining to include entitlement and, implicitly, duration) and provided that the review could not take place for eight years. The Court of Appeal for British Columbia allowed the appeal in part, and in doing so provided helpful commentary on the role of review orders: Lucyshyn v. Morrey, 2016 BCCA 357.
Difference between “variation” and “review” of BC spousal support orders
Generally speaking, variation of a spousal support order involves the threshold requirement of a “material change” in circumstances. One of the parties must show that a change in the condition, means, needs or other circumstances of either former spouse has occurred, as required by s. 17 of the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.).
Review orders permit parties to bring a motion to alter support awards without having to demonstrate a material change in circumstances. Such provision is made under s. 15.2(3) of the Divorce Act which allows a judge to impose terms, conditions or restrictions in an order for spousal support and allows an application for alteration of a support order without the burden of establishing the material change in circumstances required by s. 17.
Limited role of review orders
In Leskun v. Leskun, 2006 SCC 25, Binnie J. for the Supreme Court of Canada considered the place of spousal support review orders:
 Review orders under s. 15.2 have a useful but very limited role. As the amicus curiae pointed out, one or both parties at the time of trial may not, as yet, have the economic wherewithal even to commence recovering from the disadvantages arising from the marriage and its breakdown. Common examples are the need to establish a new residence, start a program of education, train or upgrade skills, or obtain employment. In such circumstances, judges may be tempted to attach to s. 15.2 orders a condition pursuant to s. 15.2(3) of the Divorce Act, that entitles one or other or both of the parties to return to court for a reconsideration of a specified aspect of the original order. This will properly occur when the judge does not think it appropriate that at the subsequent hearing one or other of the parties need show that a change in the condition, means, needs or other circumstances of either former spouse has occurred, as required by s. 17(4.1) of the Divorce Act.
 Review orders, where justified by genuine and material uncertainty at the time of the original trial, permit parties to bring a motion to alter support awards without having to demonstrate a material change in circumstances: Choquette v. Choquette (1998), 39 R.F.L. (4th) 384 (Ont. C.A.). Otherwise, as the amicus curiae fairly points out, the applicant may have his or her application dismissed on the basis that the circumstances at the time of the variation application were contemplated at the time of the original order and, therefore, that there had been no change in circumstances. The test for variation is a strict one: Willick v. Willick,  3 S.C.R. 670, at pp. 688-90.
Binnie J. also spoke of the desirability of narrowing the issues that may be considered on a review:
 Willick and Choquette establish that a trial court should resist making temporary orders (or orders subject to “review”) under s. 15.2. See also: Keller v. Black,  O.J. No. 79 (QL) (S.C.J.). Insofar as possible, courts should resolve the controversies before them and make an order which is permanent subject only to change under s. 17 on proof of a change of circumstances. If the s. 15.2 court considers it essential (as here) to identify an issue for future review, the issue should be tightly delimited in the s. 15.2 order. This is because on a “review” nobody bears an onus to show changed circumstances. Failure to tightly circumscribe the issue will inevitably be seen by one or other of the parties as an invitation simply to reargue their case. That is what happened here. The more precise condition stated in the reasons of the trial judge was excessively broadened in the formal order. This resulted in a measure of avoidable confusion in the subsequent proceedings.
BC spousal support order made at trial in Lucyshyn v. Morrey
Ms. Lucyshyn and Mr. Morrey married in 1994 and separated in 2011. They had three children, ages 20, 18 and 16. Mr. Morrey, age 46, was employed in a family automobile business. Ms. Lucyshyn, age 51, worked as a social worker until the birth of their first child. She returned to work after a six-month maternity leave after the births of both the first and second children. In 2005, she took a leave of absence, which expired six years later in December 2011, after the parties separated. She did not attempt to return to her position as a social worker or extend her leave of absence. Ms. Lucyshyn pursued employment as a social worker in the 18 months before trial, but her earnings were slim.
At trial in July 2014, the judge noted that the parties put considerable emphasis on their children’s education and the cost of education consumed about one-half of the parties’ monthly expenses. Mr. Morrey was ordered to pay spousal support to the Ms. Lucyshyn for an indefinite period, as Ms. Lucyshyn had a compensatory claim for maintenance, it was likely education expenses would continue for another seven to eight years in line with the parties’ wishes, the marriage was of considerable duration, and there was wide disparity in incomes.
The trial judge found a review would have utility considering the changes that would occur upon the children’s conclusion of post-secondary education. As such, he ordered a review, but limited it to amount payable and provided that it should not take place for eight years. The rationale for the eight-year moratorium was its coincidence with the end of the children’s education.
Appeal from terms of future review of BC spousal support
Mr. Morrey appealed from the terms of the review, contending that the judge erred by limiting the future review of spousal support to issues of quantum (declining to include entitlement and, implicitly, duration), and in setting the review date as at least eight years out. He submitted that the date should be earlier to allow the court to explore Ms. Lucyshyn’s efforts to become self-sufficient.
Decision on appeal from BC spousal support order in Lucyshyn v. Morrey
After noting that narrowing a review is generally encouraged by the Surpeme Court of Canada in Leskun v. Leskun, Saunders J.A. for the unanimous Court of Appeal noted that the review order in this case was more restrictive than the statutory right of the parties under s. 17 of the Divorce Act. The trial judge used the expected completion of the children’s education to time the review date. That trigger, in Saunders J.A.’s view, fell squarely within the description of a material change in circumstances. The result is that the trial judge set up a review in which he would not allow the issue of duration or entitlement to be considered, but the review would occur in the same circumstance that would allow for an application to vary in which duration and entitlement could be explored and modified. The review order improperly limited the open right provided by s. 17.
Saunders J.A. stated that she would have set aside the order for review in entirety were it open to her to do so; however, an appeal from the entire review order had not been taken. Mr. Morrey’s appeal was allowed to the extent the limitation in the scope of the review was deleted. The eight year delay was upheld.
Take home point on reviews of BC spousal support
Where justified by genuine and material uncertainty at the time of the original trial, a trial judge making a BC spousal support order can provide for a future review of all or an aspect of the order. If the court considers it essential to identify an issue for future review, it should be tightly delimited in scope so as to avoid re-litigation of the issue.