In Unterschultz v Clark, the Court of Appeal of Alberta allowed an appeal of a case management judge’s decision to dismiss application to vary lump-sum spousal support.
In this case, the plaintiff and the defendant married on January 12, 2002, and separated on February 1, 2015. On June 26, 2018, the parties entered into an arbitration agreement to determine spousal support and matrimonial property division. At this time, the arbitrator found the defendant was a wealthy businessman and had failed to provide (?) transparent financial disclosure. The arbitrator awarded the plaintiff a high lump-sum spousal support award as a result.[1]
In 2022, the defendant applied to the court to vary the supposal support payments due to material changes in his financial position. The case management judge rejected the defendant’s application due to inadequate financial disclosure. He held that variation of the lump-sum award was not available for the defendant.[2]
The appellate court held that this was a reviewable error of fact and law. A spouse that failed to make proper disclosure can still bring a variation application. Spouses can apply to vary an application whenever it can be shown there was a material change of circumstances that did not arise in their initial inadequate disclosure. Therefore, inadequate disclosure does not forever foreclose the right to seek variation.[3] The appellate court returned the variation application to the trial court to be reheard.
For family law practitioners, this is a notable decision from the Court of Appeal of Alberta, reaffirming the importance of upholding the right to vary spousal support payments as financial circumstances change. For more information on the court’s reasoning, read the complete decision here.
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If you’re looking for additional resources on spousal support, LESA has a number of on-demand programs that may be of interest to you, including:
Up, Down, and All Around: Exploring Recent Spousal Support Cases in Alberta
Creating a New Lexicon for Spousal Support
To browse all available on-demand programs on family law topics, click here.
[1] Unterschultz v Clark, 2022 ABCA 335 at para 5.
[2] ibid at pata 11.
[3] supra note 1 para 35 to 37.
