What is the test for a material change of circumstances under s. 17(4) of the Divorce Act?

When dealing with the issue of material change of circumstances, the motions judge referred to and applied Willick v. Willick, [1994] 3 S.C.C. 670, the case that sets out the applicable test. The evidence of the very significant rise in the appellant’s disposable income after the date of the Arbitration Award provided a sufficient basis for the motions judge’s finding that there had been a material change of circumstances within the meaning of s. 17(4) of the Divorce Act. As the motions judge pointed out, when making her award, the arbitrator did not foresee or take into account the prospect of such a significant increase in the appellant’s income. As we read the arbitration award, the arbitrator foresaw the risk of a reduction of income, but not the prospect of an increase. Moreover, the arbitrator’s calculation of the appellant’s income contemplated a significant reinvestment by the appellant in research and development. It is now conceded that no such reinvestment was made with the result that the appellant’s disposable income is now approximately double the amount found by the arbitrator.

Having found a material change of circumstances, the motions judge had a wide discretion to determine the appropriate level of support payable to the respondent based on the factors set out in s. 17(7): Willick v. Willick, supra. Given the level of deference applicable to the motions judge’s determination of this issue, we see no error on his part, in his calculation of the respondent’s needs or otherwise, that would justify us interfering with the quantum of the award. Although the amount of the award is generous in relation to the pre-separation life style enjoyed by the parties, it represents a very small proportion of the appellant’s present income. Moreover, the success of the appellant’s business venture is at least in part a result of work done during the marriage when the appellant benefited from the contributions of the respondent to child care and the maintenance of the household.