Changing or Ending a Spousal Support Order in Alberta

Circumstances change after a support order is made. A job may be lost, a payer may retire, or a recipient may begin a new relationship. You may wonder whether the order can be reduced or ended.

This article explains the grounds, the material change test and the common situations. Which rules apply depends on whether your order was made under the Divorce Act or the Alberta Family Law Act.

This article covers the law of Alberta.

Which law your order falls under

The Divorce Act covers married couples seeking a divorce, and its word "spouse" includes a former spouse. Married spouses who are not seeking a divorce can still claim spousal support under the Family Law Act, and unmarried partners cannot use the Divorce Act.

• Under the Family Law Act, an adult interdependent partner includes a former adult interdependent partner.
• A person is generally an adult interdependent partner after at least three continuous years in a relationship of interdependence, or for some permanence if there is a child of the relationship, or by signing an adult interdependent partner agreement.
• Related persons can become adult interdependent partners only by signing that agreement, so living together alone does not qualify them.

Having a child together does not in itself give rise to entitlement to partner support. If you are unsure which law your order sits under, the wording of the order itself is the best place to start.

The legal basis for changing an order

Under the Divorce Act, a court may vary, rescind or suspend a spousal support order, retroactively or prospectively. Before it does, it must be satisfied that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the order or last variation, and it must take that change into account.

Under the Family Law Act, a court may vary, suspend or terminate a support order or any part of it, and the ground for spousal or partner support is a change in the condition, means, needs or other circumstances of either party. A support agreement cannot vary an existing order, so you need the court.

The material change test

The change must be substantial and continuing, and one that, if known at the time, would likely have resulted in a different order. The court varies only as far as the change justifies and does not rehear the case. A variation is not a fresh hearing or appeal.

A review is different. It is closer to an initial application, though its scope can be limited by the terms of the review order. Consent orders are assessed under the same material change test, and specific finality clauses carry more weight than general ones; a change in the guideline outcome alone is not enough to vary a consent order made before the guidelines or without using them.

When varying a spousal support order, the Divorce Act says the variation order should recognize economic advantages and disadvantages from the marriage or its breakdown, apportion child-care costs, relieve economic hardship and, so far as practicable, promote each former spouse's self-sufficiency within a reasonable time.

Common changes people raise

An order or agreement can name retirement as an express review ground. If a pension was already divided as property, the payer must prove what part was divided, and the recipient must then show hardship or need. In long marriages, retirement with a drop in payer income can justify a time limit or termination, and a review clause avoids debate over whether retirement is a material change.

Indefinite does not mean permanent

Support described as indefinite has no end date but is subject to variation and review. It may be reduced or ended if self-sufficiency is reached, and courts may use review orders, step-down orders or time limits.

The Spousal Support Advisory Guidelines are not law, but judges often base spousal support decisions on them. Under them, support is indefinite when the relationship is 20 years or longer, or under the rule of 65, which does not apply to marriages under 5 years. Where child support is also paid, initial orders are usually indefinite, with time limits typically coming later on variation or review.

What to do next

• Get a copy of your order or agreement and read any review, retirement or finality clauses.
• Identify exactly what changed and when, and whether it is lasting.
• Gather proof such as income records, pension details and notices of retirement or job loss.
• Unless the parties agree or the court orders otherwise, the Maintenance Enforcement Program collects and enforces spousal and partner support payments in Alberta, so ask a lawyer how payments should be handled while you seek a change.
• Speak with a family lawyer before applying, since the statute, court and result depend on your facts.

Frequently asked questions