Pay until you die
By Roxanne Ker
In general, a Court order, if not specified as preliminary, is final (unless under appeal). One of the few exceptions is a maintenance order (an order that X must financially maintain Y). A maintenance order can be varied (including cancelled or suspended) later, provided that the party (X or Y) requiring the variation must prove “sufficient reason” (usually a material change of circumstances of X or Y).
The legal position in Canada is similar. Schulstad v Schulstad, a judgement of the Ontario Court of Appeal on 3 February 2017, dealt with an application to vary a maintenance order (called spousal support in Canada), with a novel angle.
Dr and Ms Schulstad (Karl and Diann) married in 1966, and separated in 1990. Subsequently:
– Diann remained in Ontario, and did not work “outside the home“;
– Karl moved to the USA, and “enjoyed a very successful and well-remunerated career as a general surgeon“; and
– Karl paid ample spousal support to Diann.
In January 2014, Karl (then aged 68) applied to Court to cancel Diann’s (then aged 67) spousal support, on the basis that he was planning to retire in June 2016. The novel angle is the anticipatory nature of the application. The norm is to apply to Court only once the material change of circumstances has already occurred.
Presumably, Karl had been advised that the fight in Court could take two years or more to reach finality, so he acted well in advance. A spousal support payment already made cannot easily be undone.
The Court of first instance gave judgment in August 2015, in favour of Karl; (1) describing his application as not premature, and (2) ordering the cancellation of the spousal support as of June 2016. Diann appealed to the Court of Appeal.
The Court of Appeal:
Agreed that Karl’s application was not premature: “There was sufficient evidence available to the application judge at the time of the hearing to find that [Karl] would retire in June 2016 at age 70 as planned. [Karl] had given notice to his employer, and his employer was proceeding with a process to replace him.”
Was not satisfied with the cancellation of the spousal support, and referred the matter for reconsideration to the Court of first instance (before a different Judge).
Karl did in fact retire in June 2016. But this is not mentioned in the Court of Appeal judgment. On an aside, as he was a prominent person, a regional newspaper even carried the story.
The Court of Appeal also cautioned:
“This case is exceptional in that there was evidence to support … that [Karl] would, indeed, retire, that the change in income of [Karl] … following his retirement would be very significant, and that there was sufficient financial information to permit the application judge to determine that his retirement would be a material change in circumstances. … In most cases, such an application so far in advance of the alleged material change in circumstances will run counter to the fundamental principle … that a material change must have already occurred in order for a court to have jurisdiction to vary a final order.“
A similar fight in Court in South Africa could also take two years or more to reach finality. We are not aware of any South African judgment on an anticipatory application to vary a maintenance order. Such an application could in theory succeed, but it is more likely to do so if the recipient of the maintenance is the applicant.