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It’s no secret that the issue of spousal support remains a constant source of complaint and controversy among family law litigants. Those made to pay it often believe they are overpaying, while those who are entitled to receive support frequently believe the payor is getting away with not paying enough.

Because the quantum and duration (and arguably the entitlement) to spousal support is discretionary in nature, a spousal support award is never as predictable as an award of child support. The relatively recent introduction of the Spousal Support Advisory Guidelines (the SSAGS), created by Professors Rollie Thompson and Carol Rogerson, have resulted in a more predictable outcome for spousal support amounts and duration, although they do not address the issue of entitlement (a topic for another blog post!).

However, once an amount of spousal support is determined (either through agreement or court order) the question often becomes when and how can the payor or recipient change the amount of support being paid. Payors who find themselves suddenly earning a lot less than anticipated, or recipients who learn that after the finalization of the agreement or order, the payor accepted employment that pays a great deal more, may want to have their support provision revisited. How you go about this depends very much on the nature of the agreement or order that outlines your support in the first place.

A review

Sometimes a review clause will be included in a separation agreement or spousal support order. A review clause provides for a review of the support arrangements within a certain period of time. The clause may state that by the time the review is scheduled to take place, the recipient of support must have made efforts to become self-sufficient or else support will be terminated or reduced. A review clause can also contain wording to the effect that the review’s purpose is to reduce or terminate the support, or in some cases, increase it in accordance with the payor’s income. In any event, the key difference between a review and a variation is that (absent language to the contrary) neither party needs to show a material change in circumstances in order to review the spousal support provisions.

A variation proceeding

If the parties’ order or agreement does not provide for a review of the spousal support, the other way the payor can challenge the provision is to bring a motion for variation of the support. Absent language to the contrary in either the agreement or the order, the person seeking a variation must demonstrate that a material change in circumstances has taken place before a court will consider a variation of the support.

A material change in circumstances is generally defined as one that if known at the time, would likely have resulted in different terms. This change must have some degree of continuity, and not merely be a temporary set of circumstances. Some examples of when a court has found a material change in circumstances include an unforeseen bankruptcy of the payor, an unforeseen loss of employment for the recipient or some other unanticipated financial hardship or gain received by either side.

If the applicant is successful in establishing that a material change in circumstances has occurred, the court will then consider the factors enumerated under s. 17(7) of the Divorce Act or s. 33 of the Family Law Act, depending on which legislation applies.

Please note a variation only takes place if there is an existing court order. Otherwise, if a person seeks to vary a spousal support agreement that has not been made into an order this will not be considered a variation but an application for spousal support de novo for which any pre-existing agreements will be considered. For more on this test please see the 2003 Supreme Court of Canada (SCC) case of Miglin v. Miglin.

For those who have incorporated terms of their separation agreement into a court order, recent jurisprudence from the Supreme Court tells us that no special deference will be given to the terms of the agreement although they may assist with determining whether a material change in circumstances has taken place. For more on this please see the 2011 SCC case of : Droit de la famille – 091889.

Finally the test for a variation of interim spousal support (an order for spousal support made pending the final resolution of a family law matter) is also different than the test for a variation of a final order. For more information on this please see the 2011 Ontario Superior Court of Justice case of Clark v. Vanderhoeven.

In order to fully understand your options when it comes to seeking a change in spousal support – whether you are the payor or the recipient, it is always best to consult a family law lawyer who can advise you on the most effective options available to you.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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