Much of the family courts’ time these days is occupied with what are known as “Motions to Change.” A Motion to Change is the court process used when a person wants to change or end a final family court order or agreement. The most common Motion to Change is to vary a support order. A Motion to Change is often brought when one or more of the following happens:
a) The support payor is making more money than he or she was when the order or agreement was made.
b) The support payor is making less money than he or she was when the order or agreement was made.
c) The child for whom support is payable has finished school, married or moved out on his or her own.
d) The child or children are now living with the payor or a different person.
e) The person receiving spousal support is now able to support himself or herself.
A Motion to Change can also be brought to ask the court to change a final order or agreement concerning custody or access, although the focus of this article is on support orders.
The court has the power to vary an order for support upon proof of what is known as a “material change in circumstances.” Where a Motion to Change is brought before the expiry of six months from the date of the original order or agreement, leave or permission of the court is first required.
In order to succeed on a Motion to Change an order for support of a spouse, the moving party must either establish that there has been a material change in the circumstances of one or both of the spouses or provide new evidence that was not available at the time the original order or agreement was made, although there is a substantial due diligence requirement in the case of the latter. Nonetheless, a finding that there has been a material change in circumstances will not automatically result in a variation in spousal support. In determining whether and to what extent a material change warrants a change, a court must consider all of the circumstances of the parties at the time the original order or agreement was made and compare those with the circumstances at the time of the motion or trial after considering the objectives of relevant spousal support legislation.
The courts have the power to increase, reduce or suspend support payments due to changed circumstances. The parties having earlier agreed not to terminate spousal support does not prevent a party from returning to court where there has been a material change in circumstances sufficient to warrant a change. Even where an agreement incorporated into a court order includes a term providing that it is final, courts still retain the jurisdiction to determine if there has been a material change in circumstances and what, if anything, to do about it.