A reader of the Blog recently posed the following question:
Question: “My Ex is getting spousal support, but is not living in her own apartment full-time. Is there anything I can do? It does not seem fair.”
Answer: In order to answer your question, I will presume certain additional facts – namely that the spousal support you are paying was set up under an Ontario separation agreement or a court order, and it was calculated based on certain living arrangements (i.e. your Ex living alone in her apartment). However, those circumstances have now changed, since you have learned that your Ex is living elsewhere at least part-time (I presume with a new partner, but it could be with family members or friends as well).
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The first question to ask is whether that original order or agreement obliging you to pay spousal support contains any terms about when or whether the spousal support you pay your Ex should change or stop altogether. A well-drafted separation agreement, for example, will contain built-in variation terms addressing how your support obligations may change in different scenarios; for example it may state that your Ex loses her right to receive spousal support from you if she has been living with a new partner for one year or more.
If the agreement or order contains no such term (and you are unable to reach an agreement with your Ex about reducing the support that you pay), then your remedy will be to go to court to ask that the original support obligation be varied in order to reflect your Ex’s new living situation. This will be accomplished by way of what is known as a “motion to vary”.
The court will look at various factors set by Canadian divorce laws. Although the change in your Ex’s living arrangements will not automatically terminate your support obligation to her, t may be an important factor in the court’s decision on whether to reduce it. To succeed, you will have to satisfy the court that “a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order.” The law also requires that the change must be “material”, meaning one that is not trivial or insignificant.
In short: if your Ex is not living full-time in the apartment, then there is a good chance a court will conclude that this test has been met. But it will depend on the facts of each case.
Have your Ex changed the circumstances on which your support obligations were based? Tell us about it in the comments below.