Changing Spousal Support

A spouse who is either receiving or paying spousal support may want to change the support payments. This can happen for a number of reasons. For example, it could be due to changes in a spouse’s financial situation, employment, health or relationship status. There typically needs to be a material change of circumstances before a court will change spousal support payments. There are also different factors to consider as between spousal support agreements and orders.

Spouses may, of course, agree to change their own agreement. Sometimes, agreements provide for a review of the support payments under specified circumstances. If spouses do not agree to the changes, a court application is necessary.

A court could order a change to a spousal support agreement if:

• there was fraud or deception about a spouse’s finances at the time the agreement was made
• one spouse took advantage of the other spouse and the agreement is significantly unfair
• the agreement provided for such a review

It may be otherwise difficult to get a court to agree to order a change to spousal support where the agreement was fairly negotiated and intended to be final. There would need to be a change in circumstances such that the agreement no longer represents the intentions of the parties. The spouse asking for a change would also need to show that the new circumstances were not reasonably anticipated.

Courts have the authority to change a spousal support order. To do so, they must be satisfied that:

• there has been a material change in the condition, means, needs or other circumstances of one or both spouses since the last time the matter was before the court
• the change to the order is needed to relieve economic hardship that is due to the change in circumstances and is related to the relationship or its breakdown
• had the changed circumstances existed at the time the last order was made, the order would have most likely been different

A court will look at whether a different order would have originally been made under the new circumstances. If so, it is likely that there has been a material change.

A material change of circumstances could include:

• a spousal support order that was affected by the priority of an order for child support
• a child support order ending or getting reduced
• a significant change in income
• retirement
• lack of effort on the part of the spouse receiving support in becoming self-sufficient

Some orders will state that certain events will be considered a material change. For example, this could be a failure to become self-sufficient or to recover from an accident or illness within a set number of years. If the circumstances outlined in the order occur, an application to change the order can be made without first showing any other material change. They may also set out that spousal support is only payable until a specific date. This date can be extended if the spouse receiving the support shows that there has been a material change.

In some cases, a spousal support agreement or order will have a review clause. This clause sets out that the agreement or order is to be reviewed in a set amount of time or when a certain thing happens. Including a review clause can help parties reach an agreement despite many uncertainties.

Courts are somewhat more limited as to when they can include a review clause within a spousal support order. Generally speaking, review orders are not intended to be an invitation to re-examine the entire issue of spousal support all over again. They may, however, be appropriate when there is a genuine and material uncertainty about the spouses’ finances in the near future.

For example, a review clause may be appropriate if one spouse is about to move, go back to school or start work. Typically, however, the issues that can be reviewed are limited to avoid trying the whole issue of spousal support again from scratch. If you are looking to change a support order under a court-ordered review clause, you should be prepared to argue for the change in the context of the review clause.

A spouse who has failed to make spousal support payments as required may request that a court cancel or reduce the amount owing. An amount owing is referred to as arrears. A request to cancel or reduce arrears is made by an application to vary. The court will only consider this if there has been a significant and long-lasting change that affects the paying spouse’s ability to pay spousal support. The court will look at:

• the needs of the receiving spouse
• the paying spouse’s ability to pay spousal support at the time they got behind
• the paying spouse’s ability to pay now and in the future
• whether paying the arrears would cause undue hardship to the paying spouse
• any explanation regarding a delay in asking for relief from arrears
• any unexplained delay in enforcing arrears