Changing a Spousal Support Order in Ontario: Motion to Change

Life does not stay still after a spousal support order is made. A payer may lose a job or retire. A recipient may start working full time or move in with a new partner. When that happens, many people wonder whether they can simply pay less, stop paying, or ask for more.

The short answer is that the order stays in force until a court changes it. This article explains the test for a change, the common reasons people ask for one, and the basic steps in Ontario. Every situation turns on its facts, so a lawyer can confirm how this applies to you.

The test: a change in circumstances

Under the Divorce Act, a court can vary, rescind or suspend a spousal support order, either retroactively or prospectively, on the application of either or both former spouses. Before it varies an order, the court must be satisfied that either former spouse's circumstances have changed since the order or the last variation, and it must take that change into account.

A variation requires a material change in circumstances. A variation is different from a review. A review is more like an initial application, and the terms of the review clause should limit what is reviewed.

Orders made under Ontario's provincial law may follow their own rules, so it is worth confirming which law governs your order before you start.

Common reasons people ask for a change

The reasons below come up often. Whether any of them is enough in your case depends on the facts, and results can differ a great deal.

• Retirement: if an order or agreement says nothing about retirement, retirement is usually a material change that can support a variation. Courts closely examine early retirement, and if it is voluntary and not necessary or reasonable, the court may find no material change and leave support unchanged. Health problems can justify early retirement.
• Pensions already divided: to avoid double-dipping, support after retirement focuses on the undivided portion of the payor's pension, and the payor must prove how much was already divided.
• A new relationship or remarriage: this does not automatically end spousal support, though support is often reduced and sometimes ended. Courts weigh whether the award is compensatory, the length of the first marriage, the recipient's age, and how stable and well-off the new household is.
• Self-sufficiency: a recipient must make reasonable efforts to contribute to their own support. Once a recipient becomes self-sufficient, support can be terminated, but courts often decide "not yet" and reduce support or set a future end date instead.
• Changes to child support: if child support was given priority and spousal support was not ordered or was reduced as a result, a later reduction or end of that child support counts as a change of circumstances. The recipient can then apply for spousal support or a variation.

The Spousal Support Advisory Guidelines are not law, but judges often base their spousal support decisions on them. They apply on variation and review, but should be used with considerable caution where complex entitlement issues arise.

Time-limited orders are harder to reopen

If support was ordered for a definite period or until a specified event, a court cannot later resume it unless two things are shown. The variation must be needed to relieve economic hardship from a related change, and the changed circumstances would likely have produced a different original order.

For a recipient, this means an end date in your order is not easy to undo. For a payer, it means the order may already have a built-in finish line.

Support described as indefinite does not necessarily mean permanent. It only means no time limit could be set when the order or agreement was made, and the support stays subject to variation and review.

The steps for a motion to change

Only a court can change an order, through a motion to change. The Family Responsibility Office cannot change support terms. After the motion to change is issued, you must serve the other spouse within 30 days and file an Affidavit of Service (Form 6B). The other spouse has 30 days to respond, or 60 days if they live outside Canada or the United States.

If you are in a separation agreement rather than a court order, the agreement is not automatically filed with the Family Responsibility Office. It must be filed with a court and then registered before the office can enforce it.

What to do next

• Find your current order or agreement and read the support, review and end-date terms.
• Write down what changed and when, such as job loss, retirement, illness or a new household.
• Gather income records from before and after the change.
• Keep paying or receiving support as ordered until a court says otherwise.
• Speak with a lawyer about which law governs your order and whether to start a motion to change.

Acting on your own, such as paying less without a court order, can create arrears that are enforced against you. The Family Responsibility Office's enforcement tools include support deduction orders sent to employers and bank garnishment. A lawyer can explain the risks before you act.

Frequently asked questions