Spousal Support Variations

Spousal support payments are often one of the more complex and contentious issues in any separation or divorce case. Determining who must support whom, the amount of support and the duration of time support payments are required all involve a number of considerations, many of which can be stressful on the parties involved. Regardless, each party wants a degree of certainty as to how long and in what amounts the support payments will be made so that they may plan their lives.

The importance of support payments is emphasized by the fact that the Court includes them in a binding Court order to help ensure that payments are made in a timely manner.  This allows them to be enforced by the Family Responsibility Office.

Spousal support payments may be initially determined by the parties in a negotiated Separation Agreement without the need for Court.  Thereafter, the parties may file this Agreement with the Court to ensure that payments are made in a timely manner.

 Spousal support variations

However, even Courts can’t predict the future. While the Court carefully considers many factors in determining every aspect of support payments, they can only do so with the information as it exists at the time of the when the order is made (usual the separation or divorce), but as we all know, things can change.

Unfortunately for both parties in a separation or divorce, that means the duration they are paid and amounts of the spousal support paid may change, often long after they’ve been in place and at times, bringing extreme uncertainty for the parties.

Reviews vs. Material Changes of Circumstances

In some circumstances, the parties will agree or the Court will order that they will “review” support at a specific period in time, i.e. when the payor turns 65 years of age, when the children are no longer eligible for support, or upon cohabitation or remarriage of the recipient. Either spouse may seek to have the support arrangements reviewed. When a review occurs, the parties must analyse the issues being reviewed (such as the quantum of support to be paid) based on the circumstances at the point in time or the review. 

Either spouse, whether he or she is required to make or receive the support payments, can seek a support variation when there is a material change in his or her circumstances. To change the parameters of an existing order, the spouse who seeks the variation must prove that there is a material change in the “condition, means, needs or other circumstances” of either spouse since the terms of spousal support in the Court order or Separation Agreement was made.

To be considered ‘material,’ by the Court as a reason for a variation, the change must be one that would likely have resulted in different terms if the new circumstances were in place when the original Order was handed down or Separation Agreement was made. In addition, the change cannot have been in the contemplation of the parties or Court at the time of original support Order or agreement.  Accordingly, to change a support order in this manner is a much more complicated process than a review which the parties predicted in advance.

That last parameter can pose some difficulties. The change must be one that the parties or Court did not foresee. But, looking at the factors listed above for determining a change in a payor’s ability to pay, or a recipient’s support requirements, many can be foreseeable changes, such as the retirement of the payor, and be “in the contemplation of the parties or Court at the time of the original order.”

In any case, the Court can use its discretion to determine what constitutes a “material change” in each individual case. 

Factors to be Considered in Changes of Spousal Support

In determining the eligibility and quantum of support to be paid, consideration is given to the recipient’s need and the payor’s ability to pay.  Factors to be considered can include, but are not limited to, the following:

  • A change in the financial situation of either party, including but not limited to a job loss, or significant reduction or increase in income;
  • Physical or mental health issues, including illness or disability, that affects either spouse;
  • The remarriage or common-law relationship of either spouse;
  • The retirement of the payor; or
  • Changes in the amount of the child support payment.
 Factors to be considered during spousal support changes

Changes to Spousal Support Made on Consent

When spousal support was initially resolved by way of a Separation Agreement and the parties are in agreement about the change, the parties need only to sign an Amending Separation Agreement to change the terms of the spousal support. 

However, when spousal support has been resolved by way of a Final Court Order or the Separation Agreement has been filed with the Court, then it is necessary to vary the terms of the Court Order.  A Motion to Change a Final Order or Agreement can be used even when both parties agree to the changes outlined in the Motion. In those cases, as long as the changes are considered by the Court to be reasonable, and no clarification is needed for any of the changes, Court appearances will most probably not be required.

Contested Changes to Spousal Support Orders and Agreements

If a spouse feels that his or her circumstance has changed materially or the parties cannot agree on new terms after a review, he or she can apply to the Court for a variation by submitting a Motion to Change a Final Order or Agreement form.  The other party then responds in an Affidavit so that Court hears from him or her and has all of the information required to make a decision.

Although the document filed is a Motion to Change a Final Order, the process is really not as simple as a mere Motion.  The parties must still conference the matter before a Dispute Resolution Officer and/or a Judge before a Final Decision is rendered at a Motion.  In more complicated cases where it is necessary for the Court to hear oral evidence from both parties, it will be resolved by way of a Trial.

If you feel that a change is required in your spousal support Order or Agreement, you should act fast to seek such a change. Failure to seek a change could result in a loss or retroactive payments if you are the recipient, or a refusal by the Court to recalculate payments that you have already made if you are the payor.   

If you would like to learn more about preparing and submitting a Motion to Change a Final Order or Agreement for a change to a spousal support order or agreement, you are welcome to schedule a consultation with us here at Williams Family Law.

Williams Family Lawyers