Spousal support obligations outlined in agreements and court orders are predominantly grounded in the financial circumstances of the parties at the time those orders or agreements are made. The reality is that these circumstances may change in that they alter the parties’ financial realities which may require a change in spousal support.
Material Change in Circumstances
Spousal support is not automatically adjusted when circumstances change, rather, it is incumbent on the party seeking to vary support to meet the legal threshold and establish a ‘material change in circumstances’ warranting an adjustment. Orders (or agreements that have been incorporated into orders) setting out payable spousal support can only be changed by filing a Motion to Change.
The test for qualifying a material change is laid out in Willick v Willick [1994] 3 SCR 670. It is one that is:
- Substantial, continuing, and not trivial;
- Was not reasonably contemplated at the time the original order or agreement was drafted; and
- Would likely have resulted in a different support outcome had it been known at the time.
Examples of events that may constitute a material change in circumstances include:
- Involuntary job loss;
- Significant increase or decrease in income;
- A disability or illness seriously affecting the payor or recipient;
- Remarriage on the part of either party;
- The payor’s retirement; and
- The recipient becomes self-sufficient or experiences an increase in income.
As a note, not every income fluctuation will qualify. The Courts will carefully consider whether the change is enough to significantly change the payment arrangement. Further, to be clear, a motion to change is not to be used solely because a party no longer agrees with an arrangement and wants to relitigate the issues. This is not permitted.
The Process
The simplest and most efficient way to change an Order or agreement is to have the other spouse agree to proposed changes and the spousal support order can thereby proceed on consent.
The difficulty is when the parties do not agree and one party, therefore, must bring a motion to change.
A variation order typically includes updated and comprehensive financial disclosure and documentary proof of what changed within the current circumstances and when that change occurred. This threshold test can be quite difficult to meet, especially if the change is something that was either contemplated or foreseeable at the time the agreement or Order was drafted.
Importantly, when considering whether or not you should bring a motion to change support, parties are not obligated to proceed via court right away. In some cases, the parties may attempt to explore solving the issue through mediation and/or negotiation.
Conclusion
Variation cases can be fact-specific and often hinge on the quality of the evidence before the Court. If you or your spouse have experienced a significant income change, it is wise to obtain advice from a family law lawyer prior to making any changes to payments. A family law lawyer can help assess whether your situation meets the legal test for a material change.
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