A variation of spousal or child support simply means a change of spousal or child support. Both parties, the payor who is paying support or the payee who is receiving support, can ask for the support order to be varied.
Most courts in Canada use the term variation when a decrease or increase in support payments is requested.
What is needed in order to ask for a variation in support?
Usually there needs to have been a material change before the courts will entertain a request for variance of support. For spousal support, the Divorce Act sets out this requirement.
Similarly, the Federal Child Support Guidelines also set out that “any change in circumstances” should accompany a variation order request, which reflects the material change requirement in the spousal support guidelines.
Family law is provincially/territorially determined but often also follows guidelines set out by the federal government. Usually, the provincial law will reflect similar requirements and will echo the federal law’s material change requirement for variations.
What is a material change?
A material change means there has been a change that affects the support payments and is significant enough to warrant a change in support.
However, the Supreme Court has devised a specific way of examining how material change is to be evaluated, which includes these two steps:
- To look to the circumstances under which the original agreement was negotiated and whether there is a reason that the original agreement between the parties may not be valid by reasons of oppression, vulnerability or other circumstances; and
- Does the original agreement still echo the intentions with which the agreement was made in the first place and is it in “substantial compliance” with the objectives of the act. The act being the legislation under which the agreement was made.
Under the second point, one can look at the Federal Divorce Act which outlines the objectives of the spousal (support) order, which are:
- Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
- Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
- Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
- In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period.
For example, if spousal support was ordered years ago but the ex-spouse that is paying support loses their job that would likely be a material change in circumstances and could warrant a variation.
In terms of child support, the court always looks out for the best interest of the child first and foremost. However, once again if the payee parent loses their job the court may vary the order for child support.
Other material changes that could warrant a variation could be: if the payor gets a permanent disability, if a child starts university, if the payor has more children, if the spousal support recipient has a significant increase in wages and if the spousal support recipient doesn’t make reasonable efforts to find a job.
If you want to vary a spousal support or a child support order you should consult a lawyer.
Spousal Support Advisory Guidelines July 2008
Federal Divorce Act