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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 08-05-2015, 02:59 PM
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Default have to prove material change of circumstance to enforce clause in final agreement?

FRO tells me I need a court order to change child support payments.

I did my taxes and submitted them to my ex and I made a lot less. I will need to reduce my support payments (I've been paying over for a long time). She is aware this is coming and has had a long time to plan.

I'd like to file a motion (hopefully unopposed) to adjust the child support payments. Her lawyer suggests that I can't because of the material change of corcumstance clause that says I can't until November 2016. In fact he states that I won't even be able to file a motion to request the adjustment until July 1 2017! My lawyer disagreed with his lawyer, but I'm trying to save costs and don't want a awyer if I can avoid it. Ideally I'd like to submit this myself. All I want is the agreement upheld!

Here are the relevant sections of our agreement:

13. For as long as support is payable, the parties shall produce to one another, on an annual basis, their Notices of Assessment and complete Income Tax Returns by July 1st of each year.

14. The parties shall adjust child support annually to be in accordance with the Child Support Guidelines and the Applicant's income for the prior year in July of each year.

17. The parties agree that there will be no adjustment for material chance in circumstances until November 2016.

Questions!

1. Is he right?

2. Does #17 overide #14?

3. Will I win if she opposes?

4. She hasn't submitted anything to me. Does that make a difference (kind of doubt it)?

5. It seems to me that I only want #14 enforced, not to change anything in the agreement (besides the current child support amount). Am I right? In that case it isn't a "material change of circumstance" issue at all?

6. If I'm wrong can I file a motion in November 2016, or do I have to wait until July 2017?
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Old 08-05-2015, 03:02 PM
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Any advice appreciated!
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Old 08-05-2015, 03:09 PM
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Quote:
17. The parties agree that there will be no adjustment for material chance in circumstances until November 2016.
Are you paying spousal support? This type of clause normally applies to that.
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Old 08-05-2015, 03:14 PM
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Yes I am. To my understanding this clause was put in to give stability for a while to both myself and my ex in regards to the spousal support payments and/or Section 7. I will not be looking for any changes to the spousal support payments or Section 7. I only want to adjust the child support this year as per the agreement.
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Old 08-05-2015, 03:16 PM
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I would argue that clause applies to SS and the CS follows rule 14 which is the standard rule in any case. I think your case is solid and i think she will get hit with costs.
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Old 08-05-2015, 03:22 PM
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Changing CS due to "material change in circumstances" is different from the normal changes to CS every year as it is adjusted to reflect each parent's changing income. If all you want to do is to adjust the amount you are paying in accordance with the federal child support guidelines (FCSG), reflecting your most recent tax information, I don't see anything in your agreement which says you can't do that.

"Material change in circumstances" is a weasel-phrase which gets bandied around a lot. Basically, it means a change which could not have been foreseen at the time the agreement was signed (your house explodes and you have no insurance, someone gets hit by a bus and is permanently disabled, etc). However, it is reasonable to expect that incomes will go up and down from year to year, so adjusting CS because of income fluctuation is not a "material change in circumstances".

In other words, you aren't prohibited from adjusting CS until 2017 if your reason for adjustment is the normal ups and downs on income fluctuation. You are only prohibited if your reason for adjustment is that you are claiming a "material change in circumstance". #14 and #17 refer to two different things.

So I think you are good to file a motion to change the CS amount consistent with your most recent income information and the FCSG. At least that's the way I read your agreement.
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Old 08-05-2015, 03:38 PM
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Perfect, thanks folks. That's what I thought!
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Old 08-05-2015, 03:50 PM
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She is wrong, and her lawyer is wrong. This is pretty reasonable that income goes up and down hence the whole doing the tax thing every year.

I cannot see a judge not agree with you. Computing yearly incomes to figure out child support is pretty much a given and from what I've read on Canlii, judges apply the "material change rule" IF you are fighting to change custody/access time.
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Old 08-07-2015, 10:21 AM
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I’m going to be the voice of dissent (someone had to be ). As the ss advisory guidelines can be subject to review based on the amount of cs payable, it would appear to me that your separation agreement has been set up to ensure the same amount of income is going into your ex’s household on a monthly basis – either via cs or ss. If cs decreases, then ss would increase.

The standard verbage for “material change” includes a material change, foreseen or unforeseen, in your respective financial positions and child support payable. So, I don’t think you can file for a “material change” until November 2016.
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Old 08-07-2015, 10:38 AM
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The spousal support is a fixed amount for a fixed duration. There is a statement that the amount is fixed "on a final basis" and there is an explict end date and a clasue for full and final release.

I suppose if there was a major material change of circumstance a review could be done (as with any seperation agreement) but I only want to enforce the child support portion of the agreement which I hope means I do not have to prove a material change of circumstance (since the yearly condition is already detailed in the agreement and is also sdtandard). At least I hope so!
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