What Is a Material Change in Circumstances in Alberta Family Law?

You may have been told you need a material change in circumstances before an order can be changed. People use that phrase as shorthand, but the statutes use more specific wording, and it differs depending on the kind of order.

This article walks through the tests for child support, spousal support and parenting, gives examples of changes that may matter, and explains what to gather before you apply. Whether your change is enough depends on your facts, so a lawyer can confirm.

This article covers the law of Alberta.

The test depends on the type of order

Child support: what counts

Where the amount includes a determination under the applicable table, a change of circumstances is any change that would result in a different child support order or any provision of it. In plain terms, if the new numbers would produce a different table amount, that can be enough.

Where the amount does not include a table determination, the test is any change in the condition, means, needs or other circumstances of either spouse or of any child entitled to support. For orders made before May 1, 1997, the coming into force of s. 15.1 of the Divorce Act is itself a change of circumstances.

Alberta.ca says a court may consider changing child support when the circumstances of the payor or recipient have changed significantly. Its examples are:

• The number of dependent children.
• A long-term change in employment income.
• Special or extraordinary (s. 7) expenses.
• Travel or access costs.

Spousal support and parenting orders

For spousal support, the focus is on the condition, means, needs or other circumstances of either former spouse. For parenting, the focus is on the child. A move, a new work schedule or a child's changing needs may be relevant, but the question is how it affects the child.

Even when a change is shown, parenting decisions turn on the child's best interests, with primary consideration to the child's physical, emotional and psychological safety, security and well-being. A former spouse's terminal illness or critical condition is to be considered a change in the circumstances of the child.

What generally does not help

In a variation application under the Divorce Act, the court must not consider conduct that could not have been considered when the original order was made. The tests above each look for a change, and the court must be satisfied that one has occurred. Whether something is enough depends on the facts, so ask a lawyer about your situation.

If you have simply stopped paying or started paying less, that does not change the order. The recipient applies for an increase and the payor applies for a decrease, and the support amount does not change until the court has made an order.

What to do next

Start by writing down what changed and when. Then gather your documents. A payor generally needs the order, complete tax returns and Notices of Assessment for the past 3 years, and pay stubs or other proof of current income. A recipient needs the order, Notices of Assessment for the past 3 years, current income proof and a list of special expenses.

• Identify whether your order is for child support, spousal support or parenting.
• Note the date of the order and the date things changed.
• Collect income records and expense lists.
• Consider whether the Child Support Recalculation Program may suit your child support order, since it considers only changes in guideline income.
• Consider getting legal advice before filing. If one party will not agree to change a consent order, a court application is needed and the applicant must show the statutory change in circumstances.

Frequently asked questions