By Darlene Rites
When it comes to spousal support, indefinite is not the same as forever.
According to Spousal Support Advisory Guidelines, spouses coming out of longer marriages (lasting more than 20 years) can typically expect the spousal support obligation to last for an indefinite period.
With no end date specified, my clients are often understandably alarmed (or comforted) by the prospect of spousal support payments, depending on whether they are the payor or the recipient.
However, it is crucial for both parties to understand that even these open-ended orders for spousal support can be — and usually are at some point — amended or terminated altogether.
In many ways, a judge’s order for spousal support represents a snapshot in time, whether it was arrived at following a contested trial or as a result of formalizing a separation agreement. As time passes, the parties’ lives will inevitably change, and the level of support may no longer match their updated situations.
Material change in circumstance
In the interest of finality and efficiency, courts will only entertain a motion to change spousal support if there has been a “material change” in circumstances since the original order.
Either party can bring a motion to change spousal support, based on alterations to their own or their former spouse’s circumstances, with some of the more common reasons revolving around significant changes in income.
For example, a payor could argue for a reduction or termination after losing their job or because their ex has won the lottery — reducing their need for support. On the other hand, a support recipient could use their own layoff to justify a request for higher payments.
In many cases, the spur for a motion to change spousal support comes at the time of the payor’s retirement, which typically results in a sudden drop in income.
Still, not every adjustment in former spouses’ lives will meet the relatively high threshold for an amended spousal support order. Unless they can agree between themselves, it will be up to a judge to decide whether a material change in circumstances has occurred, considering a variety of factors, including the parties’ current and past incomes, as well as their expectations at the time of the original order and the foreseeability of the change at that earlier date.
Landmark ruling on spousal support
In Willick v. Willick, the Supreme Court of Canada’s landmark 1994 case on the issue of spousal support, the court’s majority expanded on the test, writing that for a variation to be warranted, the change must be one that “if known at the time, would likely have resulted in different terms.”
For payors, any drop in income — no matter how large — cannot be self-inflicted if they hope to secure a change in their spousal support obligations. Judges may look at historic tax and financial records to assess allegations of intentional under-employment, and they will not look kindly on a party who has taken a lower-paying job or hidden their sources of income to secure a reduction in support.
Review provisions in support agreements
In some cases, the parties to a spousal support agreement build in a review provision that will trigger an automatic assessment of the support level on a specified future date, or in the event of certain occurrences, such as the retirement of the payor or the remarriage of the recipient. Still, there are no guarantees that a judge will agree that any amendments are required in any specific case.
If you think your spousal support order needs to be amended or terminated, it’s important to consult with an experienced family law lawyer who can help you assess whether the change in your circumstances rises to the level of “material,” before guiding you through the process in court, if necessary.