Can You Change Your Spousal Support in Ontario?

Aug 9, 2023

As spousal support lawyers in Toronto, we often need to dispel the belief that spousal support is automatically included in a separation agreement or divorce settlement. That is not at all true. Spousal support is not automatic – it must be negotiated as part of a separation agreement, and it can be changed if the financial circumstances of either partner change.

But the calculation of spousal support – and the process to change spousal support that is agreed upon or ordered – can be quite complicated. And that’s where an experienced family lawyer can help.

What is Spousal Support?

Let’s start off with some basic facts. Spousal support is money paid by one spouse to the other after they separate or divorce. Most people understand this.

However, did you know that spousal support is separate from child support? While children have a legal right to support by both parents, a child support determination during separation does not automatically determine spousal support.

In addition, spousal support is not just for married couples who are divorcing. In Ontario, you may also be entitled to spousal support if you were in a common-law relationship that lasted at least three years, or were in a relationship of some permanence and had a child together.

How Spousal Support Set

Although there are guidelines for spousal support, they can be very complicated. One of the key considerations in calculating support is the difference in income between the two parties. The length of the relationship, whether or not child support is being paid, and age of the people who are divorcing are also factors.

You can work with your spousal support lawyer in Toronto to determine which guideline best fits your circumstances. For more information on calculating child support, read our blog How is Spousal Support Calculated?

Can You Change Spousal Support?

Spousal support can be changed in situations where either partner’s income changes, the partner receiving support remarries, or the children’s living arrangements change.

These common circumstances are often accounted for in a separation agreement, making the changes easier to negotiate. If they are not covered in your agreement, you may need to consult with a spousal support lawyer in Toronto and consider drafting a revised agreement.

If the change is not covered in the separation agreement, or the two parties cannot agree to changes in the spousal support amount, you may need the support of your spousal support lawyer in Toronto to bring a Motion to Change.

Changing Spousal Support in Ontario

When a spousal support matter is brought before a family court in Ontario by way of a Motion to Change, it is important to lay out the facts clearly and build a case to show why the support amounts should be adjusted. Once the trial judge makes a decision, it can be difficult to change.

When the Ontario Court of Appeal hears support appeals, one of the decisions often cited is the Supreme Court of Canada case, Hickey v Hickey. This standard recognizes that a trial judge is in the best position to appreciate the facts of the case, and appeal courts should not overturn support orders unless there is an “error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong.”

Put plainly, this means that an appeal court cannot overturn a support order simply because they may have made a different decision.

The Hickey v Hickey principle was cited in a recent case heard in the Ontario Court of Appeal, Nairne v. Nairne, 2023 ONCA 478. In this case, the original trial judge had awarded Ms. Nairne $2,500 per month in spousal support until Mr. Nairne’s retirement. As part of the settlement, his share of the matrimonial home would be transferred to Ms. Nairne as an interest-free mortgage until she dies, sells the home, or no longer resides in the home full-time.

Ms. Nairne appealed the support amount and duration. While the Court of Appeal remarked that it did not endorse all facets of the trial judge’s approach to assessing the spousal support, Hickey v. Hickey was cited at the start, noting the trial judge made no reversible errors in the original judgment.

So, yes, you can change spousal support, but the facts of the case must be strong. The best route? Working with your support lawyer in Toronto to build a strong case from the outset of your Motion to Change, and ensuring the language in your separation agreement allows for changes to future circumstances.

Experienced Spousal Support Lawyer in Toronto in Toronto – Kelly D. Jordan Family Law Firm

When it comes to spousal support, experience matters. The family law team at the Kelly D. Jordan Family Law Firm has decades of experience negotiating spousal support, and arguing family law cases in court. The decisions you make as you separate can affect the rest of your life; it’s important to have the support of people who understand the law, and understand your needs. We have the experience you can trust. Contact the Kelly D. Jordan Family Law Firm today.

Resource:
Government of Ontario | Spousal support – https://www.ontario.ca/page/spousal-support