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Spousal Support Elimination and Child Support Variation?

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  • Spousal Support Elimination and Child Support Variation?

    I’m wondering where I stand legally on two contentious issues.

    First, my ex is rapidly approaching one year of co-habitation with her partner and will therefore be, as I understand it, legally in a common-law relationship. We currently have a SA (drafted by the two of us without legal assistance) that limits the Spousal Support that I agreed to pay at 10 years after separation our separation in 2004 (we were married for 8 years). She has agreed to some reductions in this amount over the past few years, but at the time of our separation she was unemployed. In the past two years she has secured full time employment from which she receives an income roughly equal to 40% of my annual income) and, as I already mentioned, will be in a common-law relationship within a couple of months. Do I have the right to insist that all spousal support should now come to an end in light of these changes in circumstances?

    Second, shortly after we separated, my ex moved back to near her home town with our two daughters. At the time they were only a couple hours away and the costs of either travelling to see my girls or having them come to me was reasonable. Now, my employer has moved me to Ottawa and I am now several hours distance away from my daughters. Although we have joint custody (but not equal time) and my ex agrees to pay for half the travel expenses, am I entitled to reduce child support in order to cover my expenses related to their travel?

    Over the years we have been able to negotiate financial matters somewhat amicably and without the need for lawyers. However, given the circumstances and the fact that for the first few years I was paying overly excess spousal support (according to the lawyer who completed the divorce), I now feel I should be able to reduce the child support and completely eliminate the spousal support. If she wants to fight me on this issue, I would like to have some assurance that I have some legal rights and precedence in these matters.

    Can anyone offer some advice?

  • #2
    Originally posted by AC_103 View Post
    I’m wondering where I stand legally on two contentious issues.

    First, my ex is rapidly approaching one year of co-habitation with her partner and will therefore be, as I understand it, legally in a common-law relationship.
    Common law in Ontario is considered after 3 years, not one, unless they have a child together.

    Common Law Separation FAQs


    • #3
      The term "common law" gets confusing, there is no common law relationship in the Family Law Act, because if it is in legislation it isn't common law. So the term is never mentioned in the provincial law governing marriage and separation.

      Some Federal legislation refers to the term "common law" and they can do that (and should) because marriage is not a federal jurisdiction. The federal laws apply to things like pensions and benefits and at what point a couple will be considered equivalent to married. For these federal regulations, the period is 1 year (in the regs I am aware of). But this has nothing at all to do with provincial laws governing separation, spousal support, etc.

      A lot of FAQs and information articles you find will use the term "common law relationship" or "common law marriage" because everyone knows what it means, but this is common parlence, not a legal term.

      So this is my long-winded way of saying Blink has it right, but AC_103 made an easy mistake (and it does apply to some things in federal jurisdiction after 1 year.)

      OK, the cow's out of the barn, and you've spoken to a lawyer already about it, but after an 8 year marriage you shouldn't have been paying spousal support for 10 years. It should have been 8 years max, and 4 years would have been reasonable and legal (.5 - 1 year per year of marriage).

      Your separation agreement was drafted without legal advice, and is it registered with the courts anywhere? If you registered the clauses about support when you filed for your divorce, then if you just stop paying, she can get the FRO after you. But if it is just between you, you could simply stop paying.

      The agreement is technically not binding, but a court could also find that it was reasonable. If a court would have supported it at the time (in issuing your divorce) and there is nothing illegal, she might be able to hold you to it.

      Let's assume it is binding, would you have grounds to reopen it? You need to show that there was an unforseen material change in circumstance. Was it forseen as a possibility that she might one day begin a new relationship? Get a job? It is hard to argue that you genuinely believed that this would never ever happen. You agreed to the support for 10 years, not until "such-and-such" happened.

      Support does not automaticly end if she remarries (or has a common law relationship) and it does not automaticly end if she gets a job. You can try to reopen the agreement but there is no guarentee. Example, if she just got a job earning twice what you earn, this would be arguably unforseen. If she just got married to a gazillionaire, this would arguably be unforseen. So you have to see there is a grey area where you are allowed to try to make your argument, but you might not win.

      As far as deducting your travel expenses from CS, it is possible but not automatic. You would need to file a motion to vary and show what your expenses were, and she could argue if she wanted.


      • #4
        Check your Separation Agreement for material change clause concerning spousal support obligation...Effectively your compelled to honour terms...


        • #5
          If the separation agreement was just made up b/w the two of you and not witnessed it will carry little, if any, weight.

          IMO you should be able to stop paying SS, but I wouldn't try to reduce the CS at the same time, especially as a result of a change of your doing.

          You won't look reasonable by decreasing the CS at the same time.

          I would give her notice that you will be terminating the SS and give her one or a few more payments then end it.


          • #6
            Advice? Given what you have described, I would personally leave well enough alone at the present moment. As you state, you have both been able to discuss finances amicably, without the advice of lawyers up to now.

            While some of the decisions you made were not wise ones, we don't get compensated for our unwise choices. It was you who chose to pay spousal support for ten years. A contract is a contract. Can you not negotiate the spousal support down, explaining AMICABLY the present circumstances with your ex?

            As for the child support, I would leave that well enough alone and would not entertain the thought of bringing the support down. I personally think it would cost you more in legal fees and acrimony and headaches for what you "might" ultimately save. IF it had been the ex who made the move, then absolutely you should fight for a reduction in child support. But, it was you who moved, not her. You could easily say you had no choice, but thems the breaks sometimes. Life ain't always fair.

            If you put the actual cost savings vs. legal costs to argue both these points, I bet you will come up with a number not in your favour, regardless of whether or not you win. Add to that the acrimony that will develop amongst the parents of two children who have worked amicably together for several years. Is it worth it? I don't think so but that is something personal that YOU have to decide. It ain't always about saving a nickel.


            • #7
              I have thought about the loss vs. gain aspect of a legal battle over these issues and I am inclined to not go down that road for many of the reasons that you describe mom3three. However, my ex chose to move away, but my job, which pays for the support she receives, required me to move further away. Furthermore, in the past, I have been unable to spend as much time with my daughters due to the amount of time my job required me to travel. Now, I am lucky enough to be in a relationship that gives me the opportunity to make up for lost time (in a sense). The travel costs amount to almost a $1000/visit, so a bit more than a "nickel"......

              All that being said, my ex has agreed to share travel expenses, but with the continued spousal support, I feel as though I am paying too much.

              Our SA was witnessed, but as my divorce lawyer put it, "one can enter into a good contract, or one can enter into a bad contract" and in this case it was clearly not a contract that I should have agreed to. I have always, without fail, increased my support payments whenever I receive an increase in salary, so I think that given her change in circumstances, an early termination of spousal is certainly something she should be willing to accept.

              Are only marriages considered an implied responsibility to support one's spouse or do common-law relationships (based on normal definitions) also imply this mutual responsibility?


              • #8
                Originally posted by AC_103 View Post
       I think that given her change in circumstances, an early termination of spousal is certainly something she should be willing to accept.
                You put forth a normative argument that in the circumstances she "should be willing to accept" a change. Well one might reasonably argue why "should" you be allowed to walk away from a contractural obligation that you made. You ought not to be moral on one issue and immoral on another.

                Yes, you appear to have made a bad deal. Perhaps if you had sought representation, you would have made a better one. But you didn't for whatever reason, so it seems to me that you should have to live with it.

                That said, your point about having to move to keep a well paying job that pays the support has merit. A discussion with her about a reduction in SS = to the travel expenses wouldn't be unreasonable. And you may even broach the notion of reducing the duration by a few years to reflect her new relationship.

                But if she disagrees, that's really a product of your contract that is silent on these issues. If the morality isn't an issue for you, then you could grin and bear it for another few years and then just arbitrarily cut off the SS, when the amount she stands to get stiffed on wouldn't merit the legal fees to fight it.

                The most important issue, beyond everything else is those kids. As mom2three wisely says, you don't want to jeapordize their well being over financial matters, whether for a nickel or greater.


                • #9
                  You could possibly argue for a reduction/termination of Spousal, given that spousal support is intended to allow the person receiving it a bit of "float" to get themselves back on their feet, and from what you describe, she is likely over 45% of your NDI at present,not even including spousal support.

                  Depending on how amicable you are, you could always make an offer to her between the two of you that is request termination of support after another 12-24 months, but agree to shoulder more of the travel costs associated to your access after that.

                  It makes you look reasonable, since you are not arbitrarily cutting support off without notice, you are willing to continue it for an additional duration, one that would have been more in line with accepted norms.


                  • #10
                    I think it is best to seek legal advice this time so you don't make the same "BAD DECISION" as you did in 2004. Since there are no "legal" tables for SS just guidleines I think you have a good chance of terminating the spousal support due to 2 huge changes in material circumstances 1) she is employed full time, and 2) she is now cohabitating with her new partner. If you had seeked good legal advice when your separation agreement was drawn up, these types of clauses clearly would have been included- therefore you would have the right to reduce SS given the changes in material circumstances. As well, child support may have been reduced at the same time given her wishes to move away. She may not have moved away if this were the case?
                    You also mentioned that you are in a relationship now, so you have a change in material circumstance as well, you now have a responsibility to support your new partner. All the being said is I agree, there is no way you should be paying full child support tables, spousal support, and travel costs to see your daughters since your ex chose to move away.
                    My personal advice would be to call a lawyer! You don't have to incur a ton on legals fees, just an hours worth for good legal advice, which will be more than a nickel but so worth it!


                    • #11
                      A couple of things I would like to point out. AC_103, you mention that both you and your spouse mutually agreed to split travel expenses prior to you moving and that travel time was only a few hours. If there had been a time to request a reduction for child support that would have been the time. That your ex is in agreement to split $1000.00 in travel expenses now as a result of your relocation bodes well for her character! If you want to argue that your child support obligations should be reduced as a result of the travel expenses, what is to stop her from subsequently refusing to pay half the expenses?

                      A reduction in spousal support? I think everyone seems to be on the same wavelength that it wasn't the most thought out separation agreement. You also state that both you and your spouse have been amicable at all times when it comes to finances. It certainly wouldn't HURT to make a proposal for a reduction in both the amount of spousal support and the timeframe, but to cut it out completely will set a ball in motion which I don't think you want to entertain. Your ex has been in a conjugal relationship with another person for less than a year. It would be rather unwise of her financially to agree to a complete end to spousal support. A relationship that is less than a year old is hardly secure.

                      I keep coming back to the idea that you have both been able to deal with everything in a mature fashion. So, why rock the boat now? IMHO, this is an emotional issue, not a financial one. Could it be that it hurts that she has gone on with her life? You need to be truthful with yourself in that regard. Why NOW??? Seems like someones heart is breaking, which I also think everyone here can also relate to. I can be way off the mark here, and if I am, take it with a grain of salt - I am just trying to see the big picture. For the sake of the girls, take a step back and try and figure it out.

                      As for your question AC_103, as to whether or not a common law spouse has rights to support, yes, but that would depend on the province in which they live as it would be under provincial jurisdiction. In Ontario, a spouse under the Family Law Act, who is not married, is one who has cohabited continuously for a period of not less that three years, or in a relationship of some permanence, if they are the parents of a child. Hope that answers that question!


                      • #12
                        Originally posted by mom2three View Post
                        IMHO, this is an emotional issue, not a financial one.
                        With all due respect, you don't have nearly enough feel or information on this matter to make that highly speculative statement. IMHO you have gone way way out on a limb there.


                        • #13
                          I agree with dadtotheend! I think mom2three has crossed the line, and is the one who has the emotional issue. There are way too many gold-diggers out there that milk men for all they can!!! It is not fair! AC_103 looks like he 's the one who wants to get on with his life! I agree that you have grounds to make changes based on this info:

                          14.2 Applications to Reduce Spousal Support Because of Changes in Income

                          The largest category of variations and reviews consists of applications seeking a reduction in spousal support based upon a change in the income of one party or the other. One of three reasons provides the foundation for the application:
                          1. the payor spouse’s income goes down;
                          2. the recipient spouse’s income goes up; or
                          3. the payor spouse applies to reduce or terminate support on the grounds that the recipient spouse ought to have a higher income.
                          14.7 The Recipient’s Remarriage or Re-partnering

                          The remarriage or re-partnering of the support recipient does have an effect on spousal support under the current law, but how much and when and why are less certain. There is little consensus in the decided cases. Remarriage does not mean automatic termination of spousal support, but support is often reduced or suspended or sometimes even terminated. Compensatory support is often treated differently from non-compensatory support. Much depends upon the standard of living in the recipient’s new household. The length of the first marriage seems to make a difference, consistent with concepts of merger over time. The age of the recipient spouse also influences outcomes.
                          In particular fact situations, usually at the extremes of these sorts of factors, we can predict outcomes. For example, after a short-to-medium first marriage, where the recipient spouse is younger and the support is non-compensatory and for transitional purposes, remarriage by the recipient is likely to result in termination of support. At the other extreme, where spousal support is being paid to an older spouse after a long traditional marriage, remarriage is unlikely to terminate spousal support, although the amount may be reduced.
                          An ability to predict in some cases, however, is not sufficient to underpin a formula for adjustment to the new spouse’s or partner’s income. Ideally, a formula would provide a means of incorporating some amount of gross income from the new spouse or partner, to reduce the income disparity under either formula. Any such incorporation could increase with each year of the new marriage or relationship. Where the recipient remarries or re-partners with someone who has a similar or higher income than the previous spouse, eventually — faster or slower, depending upon the formula adopted — spousal support would be extinguished. Where the recipient remarries or re-partners with a lower income spouse, support might continue under such a formula until the maximum durational limit, unless terminated earlier.
                          We have been unable to construct a formula with sufficient consensus or flexibility to adjust to these situations, despite considerable feedback that a formula would be desirable. In this final version, we still have to leave the issues surrounding the recipient’s remarriage or re-partnering to individual case-by-case negotiation and decision making.


                          • #14
                            Whoa! It was a mere observation on my part and I quite succintly stated to take it with a grain of salt if I was off base. Phew! It was not meant with malice.


                            • #15
                              In my opinion, the payer should be the one to be treated reasonably.

                              If he has overpaid, then he should end support, period.

                              My ex is pretty reasonable now considering the support she gets. My reasonableness depends on her altitude in communications.

                              If I was receiving generous support payments, I would be reasonable too.

                              Like a gun, it depends on which side of the barrel you are standing on.


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