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Seek advice when considering change to support payments

By October 1, 2019 July 17th, 2020 No Comments

Seek advice when considering change to support payments

This article was originally published on AdvocateDaily.com (now closed down) on 1 October 2019. It is re-published in full below.

By Paul Russell, AdvocateDaily.com Contributor

Payees and payors can apply for a change in spousal support if there is a material change in circumstances, but both sides should have legal counsel guide them through the process, says Mississauga family lawyer Deepa Tailor.

“Family law is very case-law heavy, and you need someone who is able to craft a viable argument and present it to a court,” says Tailor, managing director of Tailor Law Professional Corporation. “These variation hearings are very complex and confusing for many people.”

Generally speaking, she says people can apply for a change in spousal support if something unforeseen occurs that either limits the payor’s ability to meet the payment schedule or if payee needs more money than was first granted in the separation agreement.

“The court will essentially be looking for significant, unforeseen changes in the financial circumstances of the party asking for the increase or decrease,” Tailor tells AdvocateDaily.com.

Examples could be a second marriage, a significant spike or drop in income, job loss, or illness that prevents a person from earning income.

In all cases, she says those seeking a variation will have to file a motion to change an existing order, either under the Family Law Act or the Divorce Act.

“It’s vital to get a lawyer involved who knows how to argue this because the test is a material change in circumstances, but it has to be one that wasn’t foreseeable at the time the original order was made, and that’s a hard argument to make,” Tailor explains.

If the payor has reached the age of retirement and wants to reduce payments, that may not be allowed, she says, since the retirement was probably not unforeseen when the spousal support agreement was signed.

“Making the argument that you meet the grounds for the change to spousal support income is a very fact-specific inquiry that needs to be argued based on case law, as the test itself is not precise,” Tailor says. “It really comes down to how your case is argued.”

If the payee gets remarried, there could be a reason why that person doesn’t need as much financial support, she says. On the other hand, if the payor suffers an unexpected major illness, that could be good grounds for reducing the support paid out.

“At the very least, have a family lawyer prepare your documents for you as they know what your entitlements are and how changes in your life can affect those payments,” Tailor says.

“When it comes to support payments, final orders aren’t always final in family law,” she adds.

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