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Does ending of Child Support mean a Material Change in Circumstances?

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  • Does ending of Child Support mean a Material Change in Circumstances?

    Negotiated a Separation Agreement 3 years ago. Had 3 university aged children and all are done school, so CS obligations have now ceased. The SA was negotiated with legal counsel present and all affidavits signed accordingly.

    SA states that Spousal Support is to be paid at $XXXX per month. It is a FINAL amount, however may be reviewed and varied if there is a material change in circumstance, regardless of whether the change was foreseeable or not.

    My ex is claiming that now that CS is done, this is a material change and therefore, spousal support should be varied accordingly. I said no, this is not a material change because this was known at the time that CS would end in a few years and they could have asked for higher amounts then but didn't.

    My lawyer is saying "it can be considered..." but I am seeking other perspectives, even a second legal opinion.

    Thoughts anyone? Does the end of CS meet the material change test that seems to be well established/defined?

    There appears to be case law that supports both view, as usual.

    Thanks.

  • #2
    Hello

    I'm not a lawyer but I am in a similar situation and have found a change in C/S support, possibly offsetting SS is considered a Material Change in circumstance. It sucks as some CANLI case law almost implies a monetary penalty against the payor.

    Comment


    • #3
      Thanks for the reply. I am not sure we are talking about the same thing? I am not familiar with the term "offsetting" spousal support. That said, if a material change is considered, it seems crazy because that means C/S is nothing more than tax free spousal support.

      Child support is supposed to benefit the child, so why should ending of child support mean an increase in spousal?

      If anyone out there has any good canlii cases on material change circumstances that were "tested" when child support ended, I would appreciate links to such cases. I am hoping to find cases where the test succeeded and that spousal support amounts remained as they were.

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      • #4
        regardless of whether the change was foreseeable or not.
        Where is that statement from?

        Was there any discussion about what happens when child support terminates?

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        • #5
          That statement is in my SA. And there was never a discussion about what happens when CS terminates. I was under the impression it was Final unless a material change in circumstance happened. This is what my ex is arguing.

          It never was brought up by her or her counsel at the time we negotiated the SA.

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          • #6
            I think the statement "regardless of whether the change was foreseeable or not" is problematic. This essentially, in my opinion (and I'm not a lawyer), gives her leave to have a review.

            I'd get legal counsel and examine the "nature and intent" at the time the agreement was signed.

            Comment


            • #7
              That problematic statement was put in by my lawyer, one of the best family law practitioners in my area. And he knows full well that the nature and intent was that spousal was "final" at that time, subject to review/variation of a material change in circumstances.

              He insists this is standard language...

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              • #8
                A standard statement ? Perhaps he has primarily represented women seeking increase in SS?


                I wish my lawyer had put a clause in there like that....

                I'd seriously consider another lawyer or.... ask him how he is going to fix this to reflect the original intent of your agreement (at his expense of course).

                Fuckwit or what.

                Comment


                • #9
                  Originally posted by KW_Divorced View Post
                  Negotiated a Separation Agreement 3 years ago. Had 3 university aged children and all are done school, so CS obligations have now ceased. The SA was negotiated with legal counsel present and all affidavits signed accordingly.

                  SA states that Spousal Support is to be paid at $XXXX per month. It is a FINAL amount, however may be reviewed and varied if there is a material change in circumstance, regardless of whether the change was foreseeable or not.

                  My ex is claiming that now that CS is done, this is a material change and therefore, spousal support should be varied accordingly. I said no, this is not a material change because this was known at the time that CS would end in a few years and they could have asked for higher amounts then but didn't.

                  My lawyer is saying "it can be considered..." but I am seeking other perspectives, even a second legal opinion.

                  Thoughts anyone? Does the end of CS meet the material change test that seems to be well established/defined?

                  There appears to be case law that supports both view, as usual.

                  Thanks.
                  these two statements conflict each other. Your agreement states changes that are foreseeable. Then you say that the it isn't a material change as it was know at the time... which means that it was foreseeable.

                  Comment


                  • #10
                    TEMPLATE?

                    I learned early on in my litigation years to very carefully check each and every document my lawyer prepared. When I didn't check things carefully mistakes were made and came up years later in court.

                    Perhaps the client, in this case, trusted the lawyer a little too much?

                    It doesn't make sense to me to have an agreement which contravenes "material change of circumstance" which, if you look it up, basically means a change that is not foreseen at the time of agreement. So, in his case, the agreement covers child support until there are no long children of the marriage.... end of child support was/is duly contemplated.

                    Often lawyers have templates which they use, over and over again, and simply do not do proper editing. I found this happened a few times with my lawyer and I was quick to point it out to him when I noticed it.

                    The poster's agreement is confusing and if/when it goes before a judge the "essence" of the agreement would likely be dissected. Often lawyers keep notes of conferences etc. and it might be worthwhile to ask lawyer to meet to go over his notes?
                    Last edited by arabian; 06-28-2016, 09:59 PM.

                    Comment


                    • #11
                      I spent a few minutes reading the SSAG to see what it says about this.

                      Basically, a party can argue that their SS should be recalculated using the "Without child support formula" rather than the "With child support formula" and that changes in income will also be considered at that time, at least partially if not fully.

                      Arguing for this change doesn't change the entitlement or duration of the SS but it may change the amount.

                      But as usual, the SSAG is a suggestion not a law, a judge would have to do a detailed analysis on the how and why SS is relevant and the means and needs of both parties. Otherwise known as roll the dice.

                      Comment


                      • #12
                        They could have asked for the cross over formula during the negotiation and they didn't.

                        Also, ex was unemployed at the time but has since regained employment. My income has also increased but not at the extent of her salary.

                        I agree the SSAG are not law, but increasingly courts are using them verbatim on variation orders; a disturbing trend!

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                        • #13
                          They could have asked for the cross over formula during the negotiation and they didn't.
                          That is a very good argument.

                          You can easily argue her employment is forseeable change of circumstance that should reduce the alimony.

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                          • #14
                            So what happened here I wonder?

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                            • #15
                              Reached a settlement after many years of unsuccessful mediation, 24 hours before arbitration started.

                              In essence, I had to increase spousal support but all child and section 7 expenses were over at that time.

                              And yes, ending of spousal support is a material change in circumstance; why it does is beyond me as it's clear that, in my case, the ex put the CS money in her pocket and never went to my university aged children. Not one red cent.

                              But I finally decided that fighting on principle instead of law usually gets one nowhere, so I sucked it up and moved on.

                              Comment

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