No announcement yet.

Motion To Dismiss due to no change in circumstance?

  • Filter
  • Time
  • Show
Clear All
new posts

  • Motion To Dismiss due to no change in circumstance?

    Just got served (actually papers were put in my mailbox; is that legal?) with Family Law Application to Change Child Support. If our original papers were signed once child was already away attending university, Minutes of Settlement state support is in place to the end of the first degree, and my ex actually earns more money than when our original papers were signed, is it likely that I could file a Motion to Dismiss due to no change in circumstances? The reason why he's filing is because he feels that I have too much money, compared to him. Here's the section from the Alberta Divorce Act; see 17(4):

    Variation, Rescission or Suspension of Orders

    Marginal note:Order for variation, rescission or suspension

    17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

    (a) a support order or any provision thereof on application by either or both former spouses; or

    (b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

    Marginal note:Application by other person

    (2) A person, other than a former spouse, may not make an application under paragraph (1)(b) without leave of the court.

    Marginal note:Terms and conditions

    (3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought.

    Marginal note:Factors for child support order

    (4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

  • #2
    My understanding is that the term "material change in circumstances" refers to a situation which could not have been reasonably foreseen at the time the agreement was made (like winning the lottery, losing a long-term job, abduction by aliens, etc). I have also heard that it can refer to a change in the conditions of a child's life of sufficient magnitude that a determination of the child's best interests, if made today, would be substantially different from what it was at the time the order was made.

    So just the fact that he feels you have too much money probably doesn't carry much weight, unless you've suddenly acquired this money from lottery winnings, aliens, or whatever, or unless this money wasn't disclosed at the time you made the agreement.

    Of course, I am not a lawyer.


    • #3
      Let's hope you're correct Stripes! His salary has gone up, he sold the property he owned, the vehicle he owned outright, and now owns no property and has a $400/month car payment. I'm just trying to figure out the correct court forms to fill out to respond



      Our Divorce Forums
      Forums dedicated to helping people all across Canada get through the separation and divorce process, with discussions about legal issues, parenting issues, financial issues and more.