Terminating Spousal Support

[first timer]

I divorced in Feb of 2009 and finalized my separation agreement (sa) in Dec of 2009. Our (sa) was not filed in court. The (sa) provides for reviews by the parties at specified times and it includes material change clauses and the conditions for if these are met.
In the new year, one of the conditions to terminate spousal support will be met. My question is can I terminate based on the terms of the agreement or do I have to go to court to terminate?
My understanding is that if there is a (sa) in place and it has not been filed in court that when conditions are met under the (sa) the situation will be governed by the terms of the agreement. Is this correct?

[winterwolf7]

If your SA is signed it's a legal document. Be able to provide proof that the condition has been met (just in case) and notify the other party as a courtesy. The court should not need to be involved.

They could attempt to open a court action to claim a material change in circumstance and try to override the SA to have you keep paying, but that's their problem, not yours.

[rcmann]

My fiancee has filed to terminate spousal support. His ex has remarried and justprior to that sold her condo and has more money now that my fiancee (her ex). She has a higher standard of living than when she was married previously. Her lawyer is trying to reopen the whole thing. She has not provided her financial statement for the 2 months since this was started. Our lawyer has told us to wait for her financial information. However, she is away on vacation.He has just given her a cost of living increase and she now has a higher monthly income than he does. He did not get a cost of living increase at work, nor did he get a raise. She also has not cashed her January cheque. Does my fiancee have any recourse other than to wait. He started the motion, is she not obligated to respond?

[DadFirst]

Hi Winterwolf7.

I have an SA signed etc and am legally divorced. The problem is that the SA doesn't have any clauses for termination of spousal support (seems silly to me now). My ex has moved in with her boyfriend as of May 2011. I know that as of May 2013 they will be considered common-law and if they were to separate he would be on the hook for spousal support. Do you (or anyone?) know if this is enough to terminate spousal support? If so, any advice on the best way to proceed here?

Thanks

[Berner_Faith]

I am not an expert on this...but I don't believe 3 years as common law is grounds for spousal support, unless she gave up her career basically for the family. Just because she is living with someone and considered common law does not mean your spousal support to her can be terminated. As much as it sucks that she is now being supported by someone new, I don't believe this will be grounds for her spousal support to terminate.

[rcmann]

When a woman openly hides $600 thousand dollars in her mother's bank account and admits to this and then says she has no money, can the courts not see through this? She is living like Paris Hilton for goodness sake and claiming she is broke! When is a divorce a divorce in this country?? I cannot believe that when someone is living in a higher standard of living than when she was previously married and being supported by her ex-husband and a wealthy man, that she needs spousal support! This seems insane to me!! Does any one else think this is nuts? How many husbands does a woman need?

[Berner_Faith]

Of course it is nuts... but unfortunately when the ball is in the hands of the courts, they go by what the law states and without concrete evidence, its hard to prove someone is hiding money...if they have admitted it and you have this on paper (via email hopefully) then you may have a case, but if not it is just their word against your.

Family law is not fun at all.

[rcmann]

She shows on her financial statement that she has moved her money into her mother's account. This is because she is the trustee for her 94 year old Mom. Her Mom is in a nursing home but is financially able to pay for her own expenses. My fiancee' (the ex husband here) helped her Mom with her finances so he knows this. This is really just money laundering on her part. She has more cash in her one account than most people earn in a year. She chose to buy a house and have a standard of living that is higher than the one she had when the SA was determined.Why should her ex support her inflated standard of living when she actually can afford it herself even without her new fiancee'/husband. (she is supposed to be celebrating her marriage this march)

[mcdreamy]

eta... changed my mind, not going there.

[beebie]

My question is can I terminate based on the terms of the agreement or do I have to go to court to terminate?
My understanding is that if there is a (sa) in place and it has not been filed in court that when conditions are met under the (sa) the situation will be governed by the terms of the agreement. Is this correct?

Yes you can terminate. It is a contract. These contracts are like wills...better to pay the lawyer to get it right rather than cheap out and live to regret.

SS is not a lifelong ticket. Anything not foreseen when drafted can be a material change of circumstance (but all this is at the judge's discretion) so prove your facts. And somebody posted recent SCC decisions about this which was helpful but case specific.

People who squirrel away money in their mother's bank account (if in fact that is their money and not their mother's) are liable to be exposed as committing fraudlent transfer or fraudulent misrepresentation and that money can be imputed back to them or they can be forced to put in back. That is what financial disclosure is for.

[DadFirst]

Thanks for the reply bf. Do you have any advice on how to approach termination of support here? We've been divorced since the beginning of 2007 (married 9 years). She will be living with her new partner for a year as of this May. Her income is much higher than it was when we were married as she spent some time updating her eduction after our separation (something which was paid for by myself)...It seems to me that at some point this equates to self-sufficiency.

Thoughts or ideas?

Thanks

[Berner_Faith]

Your best bet is to speak to a lawyer regarding this. If she is now capable of making a full time wage because of her updated education, this may be grounds for termination of SS.

[first timer]

My separation agreement (sa) includes a clause which stipulates circumstances for termination of SS: the following circumstance has been met: a spouse who has been married or who has cohabited continuously for three years or more in a permanent relationship; without this clause, I am not sure how one proceeds, I did find some info, see below:

The Advisory Guidelines and the formulas can be—and frequently have been—easily applied to the most common issues on variation or review, assuming that any threshold conditions have been satisfied:

•a decrease in the payor's income (e.g., change of employment, retirement)
•an increase in the recipient's actual income

Variation or review cases that can raise entitlement or other complicating issues are a shorter list:

•old orders made before the SSAG
•a post-separation income increase of the payor
•a post-separation income decrease of the recipient
•the remarriage or re-partnering of the recipient
•second families and subsequent children
•applications to terminate support on grounds of no continuing entitlement

The threshold conditions for a variation (material change in circumstances) or review must be satisfied before the Guidelines can be used to redetermine amount and/or duration.

Self-sufficiency and termination (FV 13, 13.1, 13.7, 13.8)
Some of the circumstances that trigger a variation or review—the recipient finding employment, the recipient's remarriage or repartnering, the payor's retirement or loss of income, etc.—may raise issues of continuing entitlement. Entitlement is always a pre-condition to the application of the Guidelines. Support may therefore be terminated entirely on a variation or review if entitlement has ceased.

E. Changing Spousal Support
It is almost always possible to apply to change a court order for spousal support or to renegotiate an separation agreement that requires the payment of spousal support, as long as there has been a change in circumstances since the order or agreement was made.

People receiving spousal support might want to change an order or an agreement if:

-their spousal support payments are going to end but their financial situation hasn't improved;
-their financial situation has worsened and they need more support than they did before; or,
-something unexpected has happened, like an illness or an accident, that causes them to need support.

People paying spousal support usually want to change things if:

-their financial situation unexpectedly worsens;
-the recipient finds work or gets better-paying work;
-the recipient enters a new spousal relationship;
-the recipient's financial situation unexpectedly improves; or,
-they have a new legal obligation to support someone else.

If the parties can't agree about if or how a support order should be changed, they will usually have to make an application in court to vary the order. Couples with an agreement often try to negotiate a change and only go to court if they can't agree on the change.

here is the link: http://www.justice.gc.ca/eng/pi/fcy-...g/toc-tdm.html

[want_a_divorce]

This is not an answer to your original post but it is something that happened to my common-law BF. He voluntarily paid SS for 2 yrs as his lawyer told him it would look good in court. When he did his taxes (1 yr late) and claimed the SS, it was sent back stating she did not claim it on her taxes. He challenged and was told from Canada Revenue Agency that since there was no original agreement signed by a judge then it did not constitute SS. They advised him next time to stand infront of a judge and have it signed. (more money for the courts of course).
Even tho he had paperwork showing that he volunteered SS at $ amount and every check had "Spousal Support" written in the memo areas and they were all cashed, it did not consitute SS in the eyes of Canada Revenue.
Something learned was: Get it in writing and signed by a judge.

In the end, he immediately stopped paying SS. She took it to court claiming he stopped SS on his own accord. He proved they had nothing concrete and he was doing it without prejudice. She wanted it started back up. Stipulation was she had to redo her last taxes to reflect SS and then it would be started back up. She did not want to redo her taxes for what ever reason. SS was signed off at that point.

[DadFirst]

Your best bet is to speak to a lawyer regarding this. If she is now capable of making a full time wage because of her updated education, this may be grounds for termination of SS.

Thanks again BF. I have used a lawyer, but have not really gotten a great deal out of it (you get what you pay for I guess...)

Can anyone recommend a lawyer in the KW area? I know I know...this is Ottawa Divorce forums, so why am I asking about KW? Honestly this is the best forum I've found for these types of things. The people are helpful, the topics are interesting...

Thanks in advance

DadFirst