Hello, my name is Nick Slinko, and I am an Associate at the Feldstein Family Law Group. Our firm is often retained to assist individuals with resolving all issues stemming from their separation from their spouse or common law partner. Where the parties are able to negotiate in a timely and amicable manner, their issues can often be fully resolved by way of a contract between them called a Separation Agreement. There are several blogs on our websites on this topic, so today I wanted to focus on what recourse a party to such an Agreement has when their spouse or former spouse is refusing to amend the terms where there has been a change in circumstances that would require, for example, a different amount of monthly child support or spousal support to be paid.
To continue with the example, let us assume that the two parties to the Agreement have based the payor’s child support obligation on an income of $100,000.00, however; they have not included in their Agreement any clauses for the automatic review of child support (or if they have done so and spousal support is also payable, that there has been a substantial increase in the payor’s income such that it constitutes a material change and the terms of the Agreement should be amended).
If the parties are unable to come to amended terms on their own, and if the payor is refusing to even consider increasing his or her obligation, what recourse does the recipient have?
One way to try and correct the situation (presuming the Agreement does not first call for some other means of dispute resolution, or if and when all listed means of dispute resolution are exhausted) is through a Motion to Change. The first step in a Motion to Change (where a Separation Agreement is concerned) is to have the Agreement filed with the Court by way of its attachment to an Affidavit for Filing Domestic Contract (a Form 26B). Once that is done, the recipient can commence a Motion to Change by serving and filing a Motion to Change Form (Form 15), together with a Change Information Form (Form 15A) and a Financial Statement (either a Form 13 if the issues are related to support only, or a 13.1 if the issued are related to property).
In submitting these materials the moving party is asking for the Court to strike out or change one or more paragraphs of their Separation Agreement. The responding party can file responding materials and consent to the change, but more often than not, they will object to the change or changes sought and file their responding materials. The parties then attend Court and usually schedule a Case Conference. In the interim, they are not precluded from negotiating, and sometimes the commencement of the Motion to Change does persuade the parties to get a deal in place.
While the post-Conference steps reflect those taken in a normal Family Law Application, I wanted to bring this process to the forefront in an effort to make our viewers aware that they do have an avenue for change if, for whatever reason, they feel as though the terms of their Agreement are unjust or unfair under their current circumstances. This is common where either of the Agreements were drafted many years ago and are still applicable, or where there has been an unforeseen material change in circumstances that should result in new arrangements, financial or otherwise, being put into place.
If you think you might want to commence a Motion to Change, or if you need assistance in responding to a Motion to Change commenced by your spouse or ex-spouse, please contact our firm at 905-581-7222.
For the Feldstein Family Law Group, I’m Nick Slinko.