MAINTENANCE AND SUPPORT - Spousal support - Variation or termination - Material change in circumstances

Law360 Canada (February 28, 2023, 6:38 AM EST) -- Appeal by the wife from the motion judge’s order deleting a support provision from the divorce judgment. The divorce judgment required that the husband pay support to the wife and included a provision that if the husband defaulted in making the required support payments, the amounts payable by him for support increased. The divorce judgment was granted on consent and both parties were represented by counsel. The husband did not pay all the support payments the divorce judgment required. Eventually, in response to enforcement steps, he brought a motion to change under s. 17 of the Divorce Act. The motion judge, who was not the judge who granted the divorce judgment, found that the husband had not established that a change in the condition, means, needs, or other circumstances sufficient to vary the divorce judgment (a material change) had occurred. He considered that he still had the authority to declare that the provision of the divorce judgment calling for increased support payments upon default was an unenforceable penalty and to vary the divorce judgment by deleting that provision. The motion judge also reduced the amount of interest owing on the arrears and amended the divorce judgment by deleting paragraph 3 from it. Although his reasons did not articulate the precise source of the authority to do so, the formal order stated he did so pursuant to the Divorce Act and the Courts of Justice Act (CJA)....
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