Publications
March 2012
PFD | Family

Consult before you consent!

PFD Family Law dept.

When spouses divorce and a party requests spousal support, it is in the best interest of both persons involved to consult with a legal advisor. In fact, in its ruling in L.M.P. v. L.S., 2011 SCC 64, the Supreme Court of Canada highlighted the importance of seeking expert advice before signing a consent.

In this particular case, soon after the parties were married in 1988 , the wife was diagnosed with multiple sclerosis. She then stopped working and took care of the home and children while the husband pursed his career. The couple separated in 2002. In 2003, the spouses signed a Consent to Judgment on Provisional Measures and Accessory Measures that included a provision for indexed spousal support payable to the wife in the initial amount of $3,688 per month. A termination date for the payment of spousal support was not specified.

In 2007, the husband sought a reduction and, ultimately, the cancellation of the spousal support on the grounds that his financial circumstances had changed and that it was up to the wife to find employment. The trial judge concluded that the husband's financial situation had not changed but that the wife was able to work outside the home. The Court then reduced the wife's spousal support and ordered its eventual termination in August 2010. The wife appealed and her claim was rejected, since the Court of Appeal concluded that the wife's failure to gain financial independence had, in time, led to a significant change.

The Supreme Court affirmed that a consent shall only vary if a "change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order." To vary the order, the court must find a significant change that, "if known at the time, would likely have resulted in different terms". The Supreme Court ruled that the trial court and Court of Appeal were mistaken in concluding that a significant change had taken place since the spouses signed the consent in 2003 when the wife was suffering from multiple sclerosis and not expected to work outside the home. The husband was ordered to continue to pay out the indexed spousal support in the original order since the wife still suffered from multiple sclerosis and did not work, just as she did when the consent was signed.

The Supreme Court's ruling underscores the value of seeking counsel before entering into an agreement that could have significant repercussions in the short and long terms.