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Old 04-20-2014, 01:12 PM
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Default Change in Material Circumstance

Hello
We have a signed partial separation agreement that dealt with CS, SS, S7 and physical custody of the children (primary residence w mom).
There was a clause for review of the terms of the agreement if there was a material change in circumstance. He received a rather large bonus which constituted a change.
Now the OP and his lawyer are stating this change means the entire agreement can be changed, essentially throwing out the partial separation agreement. We had agreed on an NDI and now they are wanting a lower NDI since he feels the last agreement wasn't fair (which ironically will leave me w less money even though he got the raise!). Does anyone know if this is true when there is a material change in circumstance?
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Old 04-20-2014, 01:28 PM
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what does "he" want to change exactly? be more specific?
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Old 04-20-2014, 02:29 PM
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SA has the NDI at 67% for me.
He wants to drop the NDI to 60%. That means a complete loss of spousal support. A small increase to the CS and a cap on the S7.
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Old 04-21-2014, 12:27 AM
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My ex has taken me to court 8 times, unsuccessfully, alleging "material change of circumstances."

Let him spin his wheels and spend lots of money on his lawyer on this one. A fluctuation in one's income (bonus) isn't a material change of circumstances. Of course much comes down to the wording of your agreement but I would be very surprised if someone making "more" money gives them the right to pay less.

Sounds ludicrous to me. As my lawyer would say "a perverse interpretation of the order."
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Old 04-21-2014, 07:23 AM
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Quote:
Originally Posted by arabian View Post
My ex has taken me to court 8 times, unsuccessfully, alleging "material change of circumstances."

Let him spin his wheels and spend lots of money on his lawyer on this one. A fluctuation in one's income (bonus) isn't a material change of circumstances. Of course much comes down to the wording of your agreement but I would be very surprised if someone making "more" money gives them the right to pay less.

Sounds ludicrous to me. As my lawyer would say "a perverse interpretation of the order."
I would normally agree but it seems the OP is seeking a change in CS amounts, which could be large due to his large bonus, depending on what he is paying now in CS and SS he very well may be able to get a change. As you know SS amounts with children and without children are vastly different.

From the OP's other thread it seems they want to have more than 60% or something of the NDI, if she already has that and now expects an increase in CS, that would mean she has an even higher NDI. I don't think we are getting the whole story on this one.
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Old 04-21-2014, 07:41 AM
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I am asking for the percentages to stay the same (67%)
Which would mean a slight increase to cs and ss and change the percentage
Of s7.
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Old 04-21-2014, 07:44 AM
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Oh and both lawyers agree it's a material change in circumstance.
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Old 04-21-2014, 09:54 AM
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Depends upon your the agreement which is in place.

I'd be looking for another lawyer/another opinion. Look at previous case law under CanLii.

I would think that people get bonuses, raises annually as a normal occurrence of employment. I don't think the one-time fluctuation in income justifies a change of formula in the agreement?

If the lawyers agree this results in a change of circumstances I would be insistent that a new SA be written up to take an annual re-calculation of income into consideration without having to go to court each and every year.
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Old 04-21-2014, 11:33 AM
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Quote:
Originally Posted by arabian View Post
Depends upon your the agreement which is in place.

I'd be looking for another lawyer/another opinion. Look at previous case law under CanLii.

I would think that people get bonuses, raises annually as a normal occurrence of employment. I don't think the one-time fluctuation in income justifies a change of formula in the agreement?

If the lawyers agree this results in a change of circumstances I would be insistent that a new SA be written up to take an annual re-calculation of income into consideration without having to go to court each and every year.
This was my point as well... does that mean if he doesn't get a large bonus next year it is also a material change? Annual disclosure and updating CS amounts should happen. Does your agreement state that SS amounts change as well? Usually SS is a set amount for a certain amount of time, however if you are seeking a change in that based on his bonus and the agreement does not specify that SS increases (or decreases) then you are the one opening up the agreement.
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Old 04-21-2014, 12:05 PM
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The agreement has clauses for both cs and ss
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