CITATION: Sterenberg v. Van Ryswyk, 2017 ONSC 5551

COURT FILE NO.: 66/17 Guelph

DATE: 2017-09-19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DIANA STERENBERG

Applicant (Respondent)

– and –

GARY VAN RYSWYK

Respondent (Appellant)

Diana Piccoli, for the Applicant (Respondent on Appeal)

Glenda D. McLeod, for the Respondent (Appellant on Appeal)

HEARD: September 11, 2017

REASONS FOR JUDGMENT

Gray J.

Introduction

1This is an appeal from a family arbitration award rendered by Donald A. McIntyre on January 23, 2017.

2By his award, the arbitrator dismissed a claim by the respondent (appellant), Mr. Van Ryswyk (“Gary” or “the appellant”) to reduce the monthly spousal support payable to the applicant (respondent), Ms. Sterenberg (“Diana” or “the respondent”).

3The arbitrator also dismissed a claim by Diana that some child support arrears should be paid by Gary. There is no appeal from that determination.

4Gary purportedly sought leave to appeal the arbitrator’s costs award, but Gary’s counsel said nothing about it in her factum and no oral submissions were made with respect to it. Accordingly, I will not address it.

Background

Background

5The parties originally settled their matrimonial dispute by way of a Final Order of Justice O’Connell dated May 24, 2005, which was issued on consent, pursuant to Minutes of Settlement. Paragraph 6 of that order provided as follows:

6. The respondent shall pay by way of spousal support the sum of $3,333 per month commencing June 1, 2005 and payable on the first day of each and every month thereafter to the applicant. The amount of support payable herein shall be increased pursuant to section 34(5) of the Family Law Act and such increase shall be in accordance with the method of adjustment set out in section 34(6) of the Family Law Act. This provision is without prejudice to the rights of either party to apply for a variation in the quantum of spousal support based on upon a material change in circumstances. The applicant shall be entitled to earn up to $10,000 of income annually without such event constituting a material change in circumstances for the purposes of this variation provision.

6Earlier, at paragraph 4 of the consent order, the respondent was required to pay child support based upon an imputed income of $145,000 per annum.

7On July 27, 2011, the parties signed Minutes of Settlement with respect to a variation of the Order of Justice O’Connell. The preamble to the Minutes reads as follows:

After much negotiation and despite the fact that the parties continue to dispute the amount of respondent’s employment income (the respondent states that his income is $126,000 and the applicant states that the respondent’s income is $138,000 having regard to the benefit he receives from mileage and other non-taxable benefits). The parties, to resolve matters, hereto agree as follows:

8Paragraph 3 of the Minutes of Settlement reads as follows:

3. Paragraph 6 of the Final Order shall be deleted and replaced with the following:

a) Commencing September 1, 2011 and on the first of each and every month thereafter, the Respondent shall pay to the applicant the sum of $4,500.00 per month in spousal support. This quantum shall may be varied effective September 1, 2014 to have regard to the expected decrease in the child support arrangement for Amanda which will be considered a material change in circumstances.

b) Spousal support can be varied if there is a material change in circumstances.

c) Until the quantum of support and contribution towards s.7 expenses is amended by agreement or arbitration award, the Respondent shall continue to pay the amounts set out in these Minutes of Settlement, save and except the child support for Stephanie in the sum of $344.00 per month which shall cease on April 30, 2013 or she not being enrolled in University.

d) Until the new amount of support commences on September 1, 2011, the Respondent shall continue to pay the amounts he is currently paying namely $1,783.00 per month in child support, $3,730.42 in spousal support and 69% of Amanda’s section 7 expenses, save and except that for Amanda’s tuition due August 2011, he shall pay 60%.

[Emphasis added]

9The Minutes of Settlement were incorporated into a Final Order of Justice Herold dated August 5, 2011.

10Paragraph 3 of the Order is identical to paragraph 3 of the Minutes of Settlement, and I will not reproduce it.

11In October, 2015, the parties signed a Family Mediation/Arbitration Agreement, and complied with the provisions of the Family Law Act in executing the agreement. They appointed Donald A. McIntyre as the mediator/arbitrator.

12There were seven issues submitted for determination, one of which was as follows:

a) has there been a material change of circumstances in relation to spousal support, life insurance and costs of medical/extended health benefits;

13It was agreed that the parties would first attempt to resolve the issues through mediation and, if the issues could not be resolved, they would be submitted to arbitration.

14Pursuant to Article 10.1 of the Mediation/Arbitration Agreement, the parties agreed that an award could be appealed on a question of mixed fact and law.

15The parties could not resolve the issues through mediation, and they proceeded to arbitration.

16By virtue of an arbitration award dated August 30, 2016, the arbitrator determined whether any material change in circumstances had occurred. Each party had brought a motion for summary judgment.

17Gary argued that the following matters constituted material changes in circumstances:

a) Gary’s obligation to pay child support had ended;

b) Gary’s income had decreased since the Order of Herold J.;

c) Diana had achieved self-sufficiency;

d) Diana’s financial circumstances had drastically improved;

e) Gary’s financial circumstances had drastically worsened; and

f) Gary had been paying spousal support for 13 years.

18The arbitrator determined that the only material change in circumstances was the reduction in child support. He rejected all other changes in circumstances alleged by Gary.

19The arbitrator also dealt with some issues raised by Diana, but since they do not impact on the appeal I will not discuss them.

20It is noteworthy that there was no appeal from the arbitration award dated August 30, 2016.

21The arbitrator held a further hearing to determine the impact the material change in circumstances, namely, the reduction in child support, would have on Gary’s obligation to pay spousal support. The arbitrator issued an award, which is the subject of this appeal, dated January 23, 2017. The arbitrator dismissed Gary’s application to reduce his monthly spousal support obligation to Diana.

22Gary made a number of arguments before the arbitrator, all of which were rejected. His primary argument was that once a material change in circumstances was found to have occurred, it was incumbent on the arbitrator to determine the amount of spousal support in accordance with the Spousal Support Advisory Guidelines (“SSAG’s”). It was Gary’s position that pursuant to the ranges that would be prescribed by the SSAG’s, his obligation would be considerably less than $4,500 per month.

23Gary argued that it was reasonable to assume that the figure of $4,500 per month was selected in order that he would “frontload” his obligation to pay spousal support over a reasonable period of time, and once that reasonable period of time had ended, his obligation should be eliminated, or at least substantially reduced.

24The arbitrator rejected that argument. He held that there was no evidence that the figure of $4,500 was selected as a means of “frontloading” Gary’s obligation to pay spousal support, and indeed there was no evidence at all as to why that figure was selected. At page 6 of his award, the arbitrator stated:

My function is to make an award based on the evidence and the law. I am not going to assume facts not in evidence and I am not going to make assumptions as to how and why spousal support was agreed to at $4,500 per month in 2011. There are many, many factors that are considered when parties settle a case. Some considerations are financial but some are not. Many decisions to settle are based on emotional considerations. If, for some reason, a particular result is outside “the legal box” or the parameters of “the law”, then that fact should be appropriately documented.

25Diana argued that paragraph 3(a) of Herold J.’s Order, which incorporated paragraph 3(a) of the Minutes of Settlement, could only be construed as permitting an increase in spousal support, not a decrease. The arbitrator rejected that argument. At page 7 of his award, he stated:

In the case before me, there is no evidence that the spousal support in the Order of Mr. Justice Herold is less than it ought to have been. Nor, on the other hand, is there any evidence that the spousal support was greater than it ought to be.

The amount of $4,500 was settled between the parties. That was a figure that both parties were satisfied with when they signed the Minutes of Settlement. As indicated earlier, if that amount of spousal support was somehow greater than it ought to otherwise have been, there should have been cogent statements in the Minutes of Settlement that would alert the reader as to not only what the support ought to have been (under legal principles) but also to state why Gary was agreeing to pay more spousal support than he should have.

The Order of Mr. Justice Herold does not say that the variation can only be upward. Nor, does the Order say the spousal support can only go down.

26As noted earlier, the only material change in circumstances that was identified by the arbitrator was the reduction in child support. At page 10 of his award, he stated:

What is the effect of the reduction in child support on the payment of spousal support? The practical financial effect is, in my view, obvious. Gary has more disposable income available to him as a result of the termination of child support.

27In the next paragraph, the arbitrator noted: “Gary’s financial position is better as a result of the termination of child support.”

28At page 11 of his award, the arbitrator encapsulated Gary’s submission as follows:

The thrust of Gary’s submission is that once there has been a material change in circumstances, it is incumbent upon the Judge/Arbitrator to take into account the provisions of the Spousal Support Advisory Guidelines and a failure to do so may constitute an appealable error. Using the theory of counsel for Gary in her Divorcemate calculation, it was suggested that the ranges of spousal support were: Low $2,250; Mid $2,626; High $3,001.

29Further, on page 11 of his award, the arbitrator stated:

I do not find that the Spousal Support Advisory Guidelines have any application in the case before me. Whether the Guidelines are to be referenced in a variation application depends on the facts of the case and an analysis of the specific material change in circumstances. It cannot follow that in each and every case, once a material change has been found, reliance on the Guidelines must take place.

In this case, I start with the proposition that Gary and Diana settled their case in terms that are set forth in the Minutes of Settlement. The spousal support agreed to by the parties when they signed the Minutes is confirmation that each party accepted the appropriateness of the amount. Gary agreed to pay, and Diana agreed to accept, the sum of $4,500 per month in spousal support.

30At page 12 of his award, the arbitrator’s conclusion was as follows:

I come to the conclusion that the effect of the material change in circumstances is that Gary’s financial position has bettered. There is no justification for a decrease of spousal support given the reduction of the child support payment by Gary.

31Gary has remarried since the parties’ separation and divorce. He and his wife have one child together, who is said to be disabled.

Submissions

Submissions

32Ms. McLeod, counsel for Gary, submits that the arbitrator erred by refusing to apply the Spousal Support Advisory Guidelines. Furthermore, counsel submits that the arbitrator improperly restricted the scope of his review.

33Counsel points out that while the marriage lasted seventeen years, Diana had been receiving spousal support in excess of 13 years at the time of the arbitration. While an outright termination of spousal support might have been premature, an evaluation of the quantum was not.

34Counsel points out that the Guidelines incorporate two formulas: the “with child” formula, and the “without child” formula.

35Under the with child formula, spousal support is calculated on the understanding that the recipient will also be receiving child support. Accordingly, the spousal support should generally be lower than it would be if there were no children, in recognition of that fact. Counsel submits that the Guidelines themselves, and the courts, including the Court of Appeal, have recognized that spousal support should be recalculated once children are no longer in the picture. Such a situation is referred to as a “crossover”, that is, the calculation crosses over from one formula to the other.

36Counsel submits that where a crossover occurs, a recalculation should be done. If such a recalculation is done here, spousal support, according to the SSAG’s, should be within a range of approximately $2,200 per month and $3,000 per month. This is considerably less than the $4,500 per month specified in the final order of Herold J.

37Counsel submits that by refusing to consider and apply the SSAG’s, the arbitrator has improperly conferred on the respondent a windfall.

38Counsel submits that the arbitrator erred in declining to find that through the consent order, Gary had effectively “front-end loaded” his spousal support obligation, and that it would be appropriate now to reduce that obligation going forward.

39Counsel submits that the Court of Appeal has made it clear in more than one case that an arbitrator or court should either apply the SSAG’s, or explain why they are not being applied. In this case, the only explanation offered by the arbitrator is that the SSAG’s have no application. In doing so, the arbitrator has erred in law.

40Counsel submits that the arbitrator erred in refusing to consider evidence of Gary’s second family, and his additional financial obligations arising therefrom. He should have considered such evidence in the context of applying the SSAG’s to the material change in circumstances.

41Counsel also points out that Diana is now living in a position of relative wealth compared to that of Gary, and once again this would have been relevant had the arbitrator not improperly declined to consider the application of the SSAG’s.

42Counsel submits that I should terminate, or at least reduce, the spousal support payable by Gary.

43Ms. Piccoli, counsel for Diana, submits that the appeal should be dismissed.

44Counsel points out that the only change in circumstances identified by the arbitrator was the reduction in child support. He rejected all other purported changes. His first award was not appealed. Accordingly, the only issue before the arbitrator was the effect of the reduction in child support on the obligation of the appellant to pay spousal support.

45Counsel submits that the parties have agreed that the award can be appealed on a question of mixed fact and law. On such a question, the standard of review is palpable and overriding error.

46Counsel submits that the arbitrator properly considered and applied section 17 of the Divorce Act. Section 17 (4.1) provides as follows:

17. (4.1) Before the court makes a variation order in respect of a spousal support order, the court 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 or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

[Emphasis added]

47Counsel points out that pursuant to that subsection, the court (or, in this case, the arbitrator), is to determine whether a material change in circumstances has occurred, and, in making a variation, take that change into consideration. There is nothing in the subsection that suggests that the court is to engage in an entirely new inquiry as if the first order had not been made. It is only a variation order that is justified by the material change in circumstances that is to be made.

48Counsel submits that this interpretation is supported by the decision of the Supreme Court of Canada in Droit de la famille, 2011 SCC 64, 2011 S.C.C. 64, [2011] 3 S.C.R. 775.

49Counsel submits that the arbitrator quite properly restricted his inquiry to the effect of the material change in circumstances on the amount of spousal support. The arbitrator properly concluded that the effect of the material change in circumstances is that the appellant is better off financially than he was before the material change occurred. He is paying less, in total, to the respondent than he had before.

50Counsel submits that the arbitrator was not required to consider the “crossover” doctrine in the circumstances of this case, where the parties had agreed to a figure for spousal support on their own without applying the SSAG’s.

51Counsel submits that the arbitrator properly found that there was no evidence to support the argument that the parties had agreed to the figure of $4,500 per month so that the appellant could “frontload” his spousal support obligation.

52Counsel submits that the appellant’s second family, and the issue surrounding the alleged difference in relative wealth between the parties, are irrelevant to the issue determined by the arbitrator: namely, the effect of a decrease in child support on the obligation of the appellant to pay an agreed-upon amount of spousal support.

53Authorities relied on by the parties include Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Droit de la famille, supra; 2183164 Ontario Inc. v. Gillani (2013), 2013 ONSC 1456, 114 O.R. (3d) 676 (S.C.J.); MacLean v. MacLean (2004), 2004 NBCA 75, 243 D.L.R. (4th) 56 (N.B.C.A.); Gray v. Gray (2014), 2014 ONCA 659, 122 O.R. (3d) 337 (C.A.); Holman v. Holman (2015), 2015 ONCA 552, 336 O.A.C. 350 (C.A.); Thompson v. Thompson, 2013 ONSC 550; Mercel v. Bouillon, 2012 ONSC 6557; Maber v. Maber (2012), 397 N.B.R. (2d) 41 (N.B.Q.B.); Sutton v. Alaska Air Group Inc., 2014 BCCA 58; McEachern v. McEachern, 2006 BCCA 508; Mason v. Mason, 2016 ONCA 725; Fisher v. Fisher (2008), 2008 ONCA 11, 88 O.R. (3d) 241 (C.A.); Den Duyf v. Den Duyf, 2001 BCSC 1813; Onogi v. Elguindi, [2005] O.J. No. 2876 (S.C.J.); Dean v. Dean (2016), 81 R.F.L. (7th) 292 (Ont. Div. Ct.); L.(H.) v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518; Costa v. Costa (2008), 2008 CanLII 9609 (ON SC), 89 O.R. (3d) 670 (S.C.J.); Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670; and B.(G.) v. G.(L.), 1995 CanLII 65 (SCC), [1995] 3 S.C.R. 370.

Analysis

Analysis

54A word about the standard of review is appropriate. As noted, the parties agreed, in the Mediation/Arbitration Agreement, that an award could be appealed on a question of mixed fact and law. This would suggest a standard of review of palpable and overriding error. However, to the extent that there may be extricable questions of law raised, this might suggest a standard of review of correctness. I am prepared to consider the matter on the basis of the standard most favourable to the appellant, namely, correctness.

55Section 17 of the Divorce Act is attached as an Appendix to these reasons.

56It is noteworthy that s.17 (4) and (4.1) are restricted in their scope. They are not intended to provide a species of appeal in disguise. They permit variations of final awards, for spousal support, child support, or both, but only where it can be shown that there is a material change in circumstances. While the word “material” does not appear in the subsections, the Supreme Court of Canada has made it clear that any change relied upon must be material: see Willick, supra.

57Also noteworthy is the statement, in s.17(4.1), that where a material change in circumstances has occurred, in making the variation “the court shall take that change into consideration.” What that clearly says, in my view, is that one does not go back to square one and decide what an appropriate award would be as if the original order had not been made, but rather one must take the order as it reads and consider the effect of the material change in circumstances in deciding what variation is appropriate.

58This approach, in my view, has been definitively adopted by the Supreme Court of Canada in Droit de la Famille, supra. At para. 47, Abella and Rothstein JJ., for the majority, stated:

If the s.17 threshold for variation of a spousal support order has been met, a court must determine what variation to the order needs to be made in light of the change in circumstances. The court then takes into account the material change, and should limit itself to making only the variation justified by that change.

[Emphasis added]

59At para. 50, they stated: “A court should limit itself to making the variation which is appropriate in light of the change. The task should not be approached as if it were an initial application for support under s.15.2 of the Divorce Act.”

60This interpretation is given added weight, in my view, when one compares s.17(4), which deals with the variation of child support orders, with s.17(4.1), which deals with the variation of spousal support orders. It is noteworthy that while the ability to vary a child support order is triggered by a material change in circumstances, the concluding words of s.17(4.1), “and, in making the variation order, the court shall take that change into consideration” are not present in s.17(4). That means, in my view, that Parliament clearly intended that the court is restricted in the scope of a variation that can be made to a spousal support order as compared to a child support order, even where a material change has occurred. It is only the variation that is justified by the change that is to occur in the case of a spousal support order.

61In this case, the parties had agreed to an order under which the appellant would pay $4,500 per month in spousal support to the respondent, in addition to child support. Contrary to the submission of the appellant, there is nothing in the order or the Minutes of Settlement, or, for that matter, in the evidence, to suggest that the parties had agreed to “front-end load” the appellant’s obligation to pay spousal support. They simply agreed to the amount of $4,500, without any indication as to duration, save only a possibility of variation in the event of a material change in circumstances.

62As noted by the arbitrator, parties come to agreements for many different reasons. The arbitrator and the court are in no position to know what trade-offs may have been made, or what factors may have motivated either or both parties, in arriving at the figure they agreed to. All the arbitrator and the court know is that the court ordered $4,500 per month, simply because the parties agreed to it.

63Once the arbitrator found, as he did in his first award, that the only material change in circumstances that had occurred was the reduction in child support, it then became necessary for him to decide, as required by the Supreme Court of Canada in Droit de la famille, what variation was justified by that change. The arbitrator, correctly in my view, found that the only effect of the change was that the appellant was better off financially than he had been under the original order. However, there was no request by the respondent to increase the amount of spousal support. Thus, the arbitrator concluded, once again correctly in my view, that no reduction in the amount set out in the order was justified by that change.

64The arbitrator held, again correctly in my view, that in the circumstances the Spousal Support Advisory Guidelines had no application.

65It is important to note that the parties agreed to a figure for spousal support regardless of what might otherwise have been suggested by the SSAG’s. While there is some dispute between the parties as to the ranges prescribed by the SSAG’s in 2011, it seems clear that the SSAG’s would have resulted in a range significantly lower than the $4,500 per month the parties agreed to. Since the amount reflected in the order bore no relationship to the SSAG’s in the first place, it is hard to see how the SSAG’s could be said to have any relevance to a variation of the order in 2016, when the only change was to reduce child support and thus reduce the financial obligation on the appellant.

66In my view, the cases dealing with a “crossover” situation are not relevant here. This is not a crossover situation. This is not a case where the initial spousal support order was based on the “with child” formula, and it would then have become appropriate to reconsider the spousal support issue when children were no longer in the picture. In this case, the parties did not base the Minutes of Settlement or consent order on the with child formula. They came to a spousal support figure on their own, for reasons of their own. It would be quite inappropriate, in my view, to attempt to revisit the application of the SSAG’s on a variation motion when the parties did not apply the SSAG’s in the first place.

Disposition

Disposition

67For the foregoing reasons, the appeal is dismissed.

68As agreed at the argument of the appeal, the successful party is to have $10,000 in costs, all-inclusive. Accordingly, I order that the appellant pay to the respondent costs in the amount of $10,000, all-inclusive.

Gray J.

Released: September 19, 2017

APPENDIX

Appendix

Section 17 of the Divorce Act

Order for variation, rescission or suspension

17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses; or

(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

Application by other person

(2) A person, other than a former spouse, may not make an application under paragraph (1)(b) without leave of the court.

Terms and conditions

(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought.

Factors for child support order

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

Factors for spousal support order

(4.1) Before the court makes a variation order in respect of a spousal support order, the court 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 or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

Factors for custody order

(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

Variation order

(5.1) For the purposes of subsection (5), a former spouse’s terminal illness or critical condition shall be considered a change of circumstances of the child of the marriage, and the court shall make a variation order in respect of access that is in the best interests of the child.

Conduct

(6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought.

Guidelines apply

(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.

Court may take agreement, etc., into account

(6.2) Notwithstanding subsection (6.1), in making a variation order in respect of a child support order, a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied

(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and

(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.

Reasons

(6.3) Where the court awards, pursuant to subsection (6.2), an amount that is different from the amount that would be determined in accordance with the applicable guidelines, the court shall record its reasons for having done so.

Consent orders

(6.4) Notwithstanding subsection (6.1), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.

Reasonable arrangements

(6.5) For the purposes of subsection (6.4), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines.

Objectives of variation order varying spousal support order

(7) A variation order varying a spousal support order should

(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;

(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

(8) [Repealed, 1997, c. 1, s. 5]

Maximum contact

(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.

Limitation

(10) Notwithstanding subsection (1), where a spousal support order provides for support for a definite period or until a specified event occurs, a court may not, on an application instituted after the expiration of that period or the occurrence of the event, make a variation order for the purpose of resuming that support unless the court is satisfied that

(a) a variation order is necessary to relieve economic hardship arising from a change described in subsection (4.1) that is related to the marriage; and

(b) the changed circumstances, had they existed at the time of the making of the spousal support order or the last variation order made in respect of that order, as the case may be, would likely have resulted in a different order.

Copy of order

(11) Where a court makes a variation order in respect of a support order or a custody order made by another court, it shall send a copy of the variation order, certified by a judge or officer of the court, to that other court.