Bhupal v. Bhupal Ont. S.C.J. 2008 – Is remarriage material change for the purpose of varying spousal support?

Every family law practitioner must read this case. In fact, it might be a wise idea for every spouse who is entering into a separation agreement to understand the message of this case.

The applicant wife and respondent husband were married in 1988 and separated in 2004. Until recently the wife worked as a television reporter earning approximately $67,000.00 annually. The husband is a medical doctor, earning $319,000.00.

The divorce proceedings were lengthy and acrimonious. Following several days of testimony, the parties finally settled all outstanding issues by way of Minutes of Settlement. The Minutes provided that the husband would pay the wife $4,912.00 per month in spousal support. In addition, the issue of spousal support would be reviewable in 2011 and that prior to that review, it could “only be varied if there is a material change of circumstances which might otherwise give rise to a variation.” The agreement made no express reference to the possibility of remarriage by either spouse and how that would affect spousal support.

One of the reasons why the divorce proceedings were so acrimonious was because before separating the wife had begun a romantic relationship with a former friend of the husband. The evidence clearly indicated that at the time the Minutes of Settlement were signed the husband knew the wife was in a serious relationship with his friend and that it was possibly heading toward marriage. The wife had testified to that effect at trial. Also, she revealed she and the husband’s friend spent three to four nights together during an average week.

In October 2006, three weeks after the Minutes of Settlement were signed, the wife and the friend jointly purchased a $1.25 million property and they got married in February 2008. As such, the husband sought to suspend spousal support on the basis that the wife’s remarriage constituted a material change in circumstances.

In reaching a conclusion, the court reviewed the relevant jurisprudence and legislation. Section 17(4.1) of the Divorce Act states that before a court varies a support order it “shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order…”

According to Willick v. Willick 1994 (S.C.C.), “if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation.”

Finally the case of Franz v. Wilson 2005 (Ont. S.C.J.) stated the following “The party who wants to be able to argue that remarriage or cohabitation was foreseeable at the time of entering into the Minutes of Settlement should have the obligation to “lay that relationship on the table” at the time of signing the Minutes of Settlement.

In the case of Bhupal, it can be argued that there was a change in circumstances after the Minutes of Settlement were signed as the wife remarried. However, at the time the Minutes of Settlement were signed the husband was well aware that the wife was in a serious relationship and she had “laid that relationship on the table.”

Therefore, the court concluded that the wife’s remarriage did not constitute a material change in circumstances and therefore he was not entitled to a variation of spousal support. The court reached the decisive conclusion that the husband should have stipulated in the Minutes of Settlement that remarriage by the wife qualified as a material change in circumstances if this is what he intended.

This Post Has 2 Comments
  1. This is certainly an interesting case. I do not believe that in any circumstance the fact that remarriage has not been stipulated as qualifying as a material change in circumstance should prevent the party from being successful on the change in support. In this case it was clear that the wife was in a committed relationship and planned to marry. In many cases the support recipient will be dating, however it should not be foreseeable that she will marry that person or anyone. The facts of this case are specific and the Minutes of Settlement ought to have contemplated this reality and therefore in this particular case there had not been a material change in circumstance. In other cases where the party is single at the time, or is in a new relationship I do not believe remarriage would necessarily be foreseeable. To be safe, however we should now ensure that the proper wording is in our separation agreements and Minutes of Settlement. This may be unfortunate for the husband in Bhupal; however he ought to have set his mind to the facts right before him.

  2. This case is a good example of instances where a Court will give great deference to the agreement reached by the parties, in spite of the fact that their reality may suggest the necessity for a different outcome. The Court sends a clear message here that litigants should be mindful of all possibilities when coming to agreements so that they cannot later come back and try to make changes that should have been provided for therein. The reality of this case is that Ms. Bhupal no longer had a need for spousal support, one of the key factors in determining entitlement to same. However, the Court placed great significance on the agreement executed between the parties and, since Mr. Bhupal was aware of the possibility of his former wife’s remarriage and did not provide for this in the Minutes of Settlement, spousal support was to continue. While it is desirable for Courts to uphold agreements made between litigants, it is questionable whether the results that this approach yields is realistic and logical.

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