Question regarding spousal support and material change in circumstance

[KW_Divorced]

To keep things simple; my ex and I negotiated a Separation Agreement earlier this year where I have agreed to pay a fixed sum of SS per month for an indefinite period (long term marriage). The amount can be adjusted based on material change in circumstances (not defined in agreement), and it is up to us to negotiate when such a condition has happened.

The obvious ones (dramatic change in income, sickness, etc) would be fairly straightforward however I have heard that her new BF has moved into her home with her and that he also have a very good job.

Does this generally constitute a material change in circumstance? My ex (who is not very reasonable) would a) never admit or disclose this and b) her last comment on the subject of SS is that I should be paying her even more now that she has lost her permanent job, however she is working on a part time basis now.

Any advice would be appreciated before I decide how to proceed with my lawyer. Thanks all!

[arabian]

I would suggest that you read up on "material change of circumstance" and "undue hardship" because I think you are getting the two mixed up.

Undue hardship looks at everyone's household income (yours, your current common-law, your ex's and her common-law spouse). It is extremely difficult to prove this because people conveniently have relationships with their common-law that break up right about the time you get to court).

Change of circumstances has a whole other set of benchmarks. You can't voluntarily underemploy or unemploy. There is much literature and case law on change of circumstances. A judge also might merely stay support payments for a short period of time (3 months) unless you can prove a change in circumstances that is going to be permanent (illness or injury, for example).

SS for long term marriages doesn't normally just go away. It can be decreased or increased to reflect the change. Of course much depends upon the wording in your divorce order.

Spousal support orders are weighed on a case-by-case basis. This is why I tell people it is extremely important to pay attention to those interim orders for SS as they seem to set the pace for permanent orders down the road.

As you have nothing in your divorce agreement regarding repartnering I think you are out of luck. If you have a review date (every 5 yrs for example) then you could possibly bring it up at that time. It is extremely difficult to go back and have your divorce order changed.

There is plenty of case law to read on CanLII on SS issues. Happy Reading!

[Janibel]

There is plenty of case law to read on CanLII on SS issues. Happy Reading!

Could you paste the url to that site please? I would be VERY interested in reading up on this. (would sleep better at night)

[OrleansLawyer]

Could you paste the url to that site please?

CanLII - Canadian Legal Information Institute

I also suggest Google as an excellent resource; if you know the name of a website, but are not certain of the address, it can provide substantial assistance.

Does this generally constitute a material change in circumstance?

Her cohabitation - yes, except if they have not lived together for three years a convenient breakup could remove the change.

Affidavit sworn, "I broke up with [your ex] because I'm not willing to date someone in litigation, and I believe it would ruin me financially, so [your ex] is on their own".

Then she uses her change in employment as a material change while requesting higher spousal support.

SS for long term marriages doesn't normally just go away. It can be decreased or increased to reflect the change. Of course much depends upon the wording in your divorce order.

This is true. In particular, it should be noted whether the spousal support is compensatory or non-compensatory.

As you have nothing in your divorce agreement regarding repartnering I think you are out of luck.

A new partner, particularly with an income, is a material change in circumstances. After three years in Ontario, she could also pursue him for spousal support, strengthening the argument that he should be the one providing the support.