Changing an Existing Spousal Support Order
In many divorces, one spouse pays support to the other spouse. People refer to this as spousal support, alimony payments or just spouse support. Sometimes life changes. If you have an existing Spousal Support Order, whether as a payor or recipient of spousal support, a development in life might lead you to need to apply to court to alter or change the terms in the Spousal Support Order. Changing spousal support orders occurs in these situations. The spousal support lawyers at Kahane Law Office in Calgary, help people when these changes occur.
Application To Alter Spousal Support Payments
The courts hears applications to change alimony payments frequently. For example, applications to change spousal support orders terms will fall under two categories:
1) a Variation Application or
2) a Review Application.
Deciding Which Application To Change Alimony Payments?
Firstly, one must look at what is currently in place before making a change. The type of application used for changing spousal support orders depends on the exact terms of your existing spousal support order.
If you have a spousal support order with no terms or conditions permitting a review, we use an application to vary the Spousal Support Order pursuant to section 17 of the Divorce Act (Canada). Under this section, you can apply to vary, rescind or suspend, prospectively or retroactively, the existing Spousal Support Order or any term in it.
If you have a spousal support order that contains a specific review term or that explicitly states it is subject to a review, your application will be to Review the existing spousal support order. A review application can involve a review of entitlement to spousal support, the form of support, its duration or/and the amount. A review application will be based on the facts as they exist as of the return date.
Differences Between Variation Applications And Review Applications
In a variation application, the onus is on the party seeking the variation to first show that there has been a material change of circumstances since the making of the prior order or as stated in section 17 (4.1) of the Divorce Act the applicant has to satisfy the court there has been “a change in the condition, means, needs or other circumstances” of the parties sufficient to justify an alteration in the award. Finally, in a review application, there is no such requirement upon the applying party.
A review term in a spousal support order is a condition pursuant to section 15.2(3) of the Divorce Act. It permits an applicant to bring an application to review the spousal support order. Consequently, no need exists for first demonstrating a “material change in circumstances”.
How To Establish A “Material Change Of Circumstances”
On an application to change spousal support orders, the court considers the terms of the order and the circumstances of the parties at the time the prior order was made to determine whether a particular change is “material”. Once establishing a material change in circumstances, the courts then determine the appropriate variation of existing order looking at the following:
- the actual change in circumstances,
- the four objectives laid out in section 17 (7) of the Divorce Act; and
- if a separation agreement exists, consider any relevant terms of the agreement. It is not treated as an appeal or a new application.
To prove a “material change of circumstances” exists since the making of the prior order:
(a) a change must, if known at the time, likely result in different terms to the existing order; and
(b) the change must not have been reasonably foreseeable or known of at the time the prior order was made.
Consequently, a significant change may not be a “material change”. This leaves the applicant with the original spousal support order terms. The circumstances must amount to a completely unforeseen or anticipated by the parties when they entered into the original order. Without this change, courts disallow any changing spousal support orders.
Additionally, a “material change of circumstances” must have some degree of continuity. A temporary set of circumstances does not count.
Changing Spousal Support Orders In Separation Agreements
It involves applying under section 17 of the Divorce Act in order to vary the order. It looks at the threshold variation question. “Has there been a material change of circumstances since the making of the order?”. If so, it allows for a re-assessment.
The court considers the agreement in determining the threshold question, especially if the agreement addresses future circumstances.
Even if an agreement incorporated into an Order includes a term providing that it is final, the Court’s jurisdiction under section 17 of the Divorce Act cannot be ousted –the Court always has the ability to determine if a material change of circumstances exists and if yes, then the Court has the ability to vary the Order.
Changing Settlement Agreements With Alimony Payments
It involves applying under section 15.2 of the Divorce Act for an initial spousal support order – it is not treated as a variation application under section 17 of the Divorce Act because no Court Order exists yet.
A fairly negotiated agreement that represents the intentions and expectations of the parties and that complies substantially with the objectives of the Divorce Act will receive considerable weight from the court. However, under section 15.2 of the Divorce Act the courts are authorized to make an initial order which may be contrary with the terms of the Separation Agreement if those terms do not comply with the objectives of the Divorce Act.
The Court has a two-stage test. For initial support order under section 15.2 of the Divorce Act where pre-existing agreements exist.
- Firstly they examine the process leading to and the substance of the agreement (were lawyers involved, financials exchanged etc); and
- Secondly it requires a determination of “the extent to which enforcement of the agreement still reflects the original intention of the parties and the extent to which it is still in substantial compliance with the objectives of the Divorce Act.”
Lawyers For Changing Spousal Support Orders
Lastly, whether you have a Spousal Support Order, a Separation Agreement or Divorce Judgment with spousal support terms, if you are looking to change the terms, feel free to schedule a consultation with a member of our family law team to discuss your options. Please contact our experienced team at Kahane Law Office. You can reach us in Calgary, Alberta at 403-225-8810 or toll-free at 1-877-225-8817, or email us directly here.