Ferguson v. Ferguson – A Cautionary Tale on the “Material Change in Circumstance” Clause

The case of Ferguson v. Ferguson examines the circumstances in which a Court will vary a previously made award for spousal support. In order to alter an existing spousal support order, a litigant must convince the Court that a material change in the parties’ circumstances has occurred. In this case, the Husband was originally ordered to pay both spousal and child support to the Wife in 2004. When the children turned 18 in 2007 and child support ceased, the Wife successfully argued that the cessation of child support was a material change in circumstances, giving rise to the alteration of her existing spousal support order. After separation, the Husband’s income increased while the Wife struggled to earn a modest income of less than $10,000.00. She was living with arthritis, depression and anxiety, all of which affected her ability to work, and she was required to borrow money from her elderly parents. When the Court examined all of these factors, combined with the end of the Wife’s entitlement to child support, it was clear that she could not subsist on her original quantum of spousal support. As such, Justice Hambly increased her spousal support to a point where it exceeded the total of her original spousal and child support orders. While this result seems harsh, the Court felt it was fair in the circumstances. This case should also serve as a caution to payors who seek to alter their support payments using child support as a material change in circumstances. Instead of decreasing, they could in fact find their support obligation increasing.
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