Since we are on the cusp of a change of seasons, it seems appropriate to discuss the concept of change in Family Law – specifically the concept of “material change”, which is a legally-important threshold that allows a court to vary a prior Order that it has made against you in the context of your separation or divorce from your spouse.
Most often this can come up where a court has made an order requiring one of you to pay spousal support to the other. Without more, any order of this nature will generally remain legally unchanged and effective – unless something significant and unforeseen happens which results in the original order becoming unfair or unreasonable in the new circumstances.
In Ontario law, that change must meet a certain legal threshold, and is known as “material change”. Although the concept is flexible and there is no firm definition, it must be of a continuing nature, and cannot be trivial or insignificant.
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A common example would be where you are the spouse who has been ordered to pay support to your ex, but you have unexpectedly:
- lost your job;
- been forced into early retirement;
- gone bankrupt;
- decided to take a new relationship forward, to the point where you have support obligations towards a new partner and/or new dependants.
It’s also important to know that “material change” is always evaluated against the particular facts, and it must have been unforeseen at the time the original court order was made – to the point where a different court order would have been made if the new circumstances were known at the time. Also, if you are the spouse who wants to have the original court order varied, then you will bear the burden of proving to the court that the change in circumstances has reached the level of “material change” to the point where a new order is required.
Has there been a recent change in your circumstances, so that a change to your original support order might be warranted? We can help.
Shulman & Partners LLP is a Toronto-area firm of experienced Family Lawyers who can provide practical advice and effective representation relating to the steps and processes involved in separating and getting divorced in Ontario. Contact us to set up a consultation.