Q: I was divorced from my spouse and ordered to pay her support. Things have changed since then and I want to pay her less. How do I do this, and what do I have to prove?
A: This is a common question for lawyers. You will have to apply for a variation of the support order. The basic test for this is that the person seeking the change in the existing order must show that circumstances are different now. The change must have happened after the original order was made. Also, the change must be relatively permanent or at least not transitory in nature.
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As well, the variation judge has to assume that the original order was made properly and was regular, which means you cannot change the current support order by arguing that the judge who made that order made errors or didn’t listen to your arguments. If you try to argue this you will likely be shot down, and the judge will ask why you did not appeal that original order to a higher court. You must concentrate on the change in circumstances if you hope to succeed.
So, what amounts to a change in circumstances? In the case of spousal support, it is usually related to the income of either the paying or receiving party. This is because spousal support is usually assessed by a needs and means test. The spouse seeking support must show his or her income, the expenses and the ability to meet those expenses by using their own income. If there is a gap, that means there is a need for support.
The court should examine whether that need is related to the marriage. For example, if your spouse stayed home for 25 years to look after the children and hasn’t worked outside the home during that time, and is now older than 40, that is probably related to the marriage.
The court then turns to the second stage of its analysis and looks at your income, expenses and ability to meet the needs of your spouse. The court then determines how much of that need you can meet, and orders you to pay a monthly amount.
Canadian law also mandates that each spouse needs to work toward economic self-sufficiency. However, that will vary with each situation.
The expectations on spouses who are in their 20s and were only married a few years, with no children, will be much different than for spouses who have split after marriages of long standing with children involved. What amounts to a change will depend on this exact situation.
A word of advice: everyone’s an armchair lawyer and will tell you a story of someone they know who got a better deal from the court. Family law case results vary significantly because of their particular facts.
Examples of what qualifies as a change of circumstances include: a reduction in your income or an increase in your ex’s income; taking retirement and reducing your income; illness or disability preventing you from working; and remarriage or having new children. All of these will affect your ability to pay or her need to receive support.
Note that you cannot intentionally become unemployed or underemployed. For example, if you have been earning $75,000 a year for several years, you cannot quit your job to go back to school to follow your dream. If you do, it is open to the court to keep your spousal support at its level. You will likely receive little sympathy if the downturn in your income is entirely of your own creation.
The one exception to this is retirement. At a certain time, everyone is entitled to retire. Usually this brings about a genuine income reduction that will result in an adjustment or elimination of your spousal support.
Consult a lawyer about your rights. While you are free to represent yourself in court, you need the skill and objectivity of a lawyer to assist you. There is an old saying that a lawyer who represents himself has a fool for a client. The saying applies to more people than just lawyers.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
