The Court of Appeal of Ontario in a unanimous five-jurist panel on June 28, 2005 handed down its decision in Eileen Mary Tierney-hynes vs Adrian Francis Mary Hynes. At the time of this writing it is unknown if an appeal will be launched in the Supreme court of Canada.

The law that prohibits Courts from revisiting Orders that deny or terminate spousal support payments has been overturned. Have you been denied spousal support during your divorce proceeding, even years ago? Now you can revisit that denial and assuming your change in circumstances i.e. health, is material and has occurred since the divorce, then you have the grounds to bring the application. This has always been the case when there was a spousal support order for even a dollar.

For the payor spouse this decision ends the comfort there was in the past from a "final decision" denying or terminating a spousal support order. The spectre of a former spouse coming back years or even decades later to dip into the artesian well that her spouse worked hard to discover years after the divorce can be tapped again. This may even be the case if all spousal support was waived in exchange for the house or a lump sum spousal support payment. Finality in such court decisions or private agreements through separation agreements is a thing of the past. This paradigm shift is the result of changes to the Divorce Act that no longer embrace the "clean break" and "rehabilitation" principles of the Act before these amendments. Only "time" will tell the tale of the need for spousal support, not the sums agreed to or denied at the time of the Divorce. Spouses now like children can "move in and out of a support regime."

Now only an award of costs against an unsuccessful former spouse claiming support will act as a deterrent against such claims which at least for short term, should increase exponentially. I am available to help you to make sense of this decision. Please click here.

June 2005

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