Spousal support orders that are part of a court order, or an agreement incorporated into an order, can only be changed by way of a Motion to Change. Parties may apply to the court to vary (or change) a spousal support order under the Family Law Act, s. 37, or under the Divorce Act, s. 17.
Some factors that might change a support payor’s ability to pay, or the recipient’s need of support, include:
- An unforeseen change in financial circumstances for either party, including job loss or a significant increase or decrease in income;
- A disability or illness seriously affecting the payor or recipient;
- Remarriage by either party; or
- Retirement of the payor.
Spousal support orders may be varied with the consent of both parties by way of a Motion to Change. If both parties agree to the proposed changes, it is likely that no court appearance will be necessary (this is assuming that the provisions are reasonable and do not require any clarification).
Contested Spousal Support Changes
Parties may also proceed with a Motion to Change for contested spousal support issues by requesting the court to rule on the matter. In order to vary an existing support order, the party seeking to vary the order must prove (on a balance of probabilities) that there has been a material change “in the condition, means, needs or other circumstances” of either former spouse since the making of the spousal support order (see the Divorce Act, s. 17(4.1)).
In order to be considered “material,” the change must be one that “would likely have resulted in different terms” if those circumstances had been in existence at the time of the original order (Willick v. Willick). Further, the change cannot have in the contemplation of the parties or the judge at the time of the original order.
This can be a difficult test to meet, given that the change must be one the court making the original order did not foresee at the time and cannot be considered to have taken into account. Retirement, changes in employment, and the remarriage of one partner may all be foreseeable changes, depending on the specific circumstances of the parties. The court has discretion to determine which events constitute a material change in any given case.
The Advantages of Involving an Ontario Divorce Lawyer
The variation process is both time consuming and complex, and it requires specific legal expertise, particularly where financial security is concerned. An experienced family law lawyer is an essential resource when contemplating a change to an existing order or agreement.
Serving all of Ontario since 1994, we at Feldstein Family Law Group P.C. can provide the level of counsel you need. Call (905) 581-7222 today!