Modifying Spousal Support: When and How

Your spousal support was set based on circumstances at the time. But circumstances change. What happens when they do?

The short answer: you can apply to vary (change) support if there's been a "material change in circumstances." But that phrase does a lot of heavy lifting. Courts don't just change support because you'd prefer to pay less or receive more. The change has to be significant, unexpected, and affect the basis on which support was originally set.

Here's how it actually works.

What Counts as a "Material Change"?

A material change in circumstances must meet three tests:

1. It's a change from before. The circumstances must be different from when the order was made.
2. It's significant. The change must be big enough that it would have resulted in different support terms if it had existed originally.
3. It wasn't anticipated. If the original order already accounted for this possibility, it's not a "change."

Changes That Usually Qualify

Changes That Usually Don't Qualify

Common Scenarios

Job Loss

Involuntary job loss (layoff, company closure, position eliminated) is generally grounds for a variation. But courts will look at:

• Was the job loss truly involuntary?
• Are you making genuine efforts to find new work?
• Did you receive severance? (If so, support might continue at the same level until severance runs out)
• What's your realistic earning capacity going forward?

Voluntary job loss (quitting, being fired for cause) is a different story. If you quit to reduce your support obligation, courts will likely impute income at your previous level. "I wanted a change" isn't a valid reason to pay less support.

Retirement

Retirement is a major life change that typically qualifies for a variation. But courts consider whether the retirement is "reasonable":

• Normal retirement age: Retiring at 65 from a regular job? Generally reasonable.
• Early retirement with good reason: Health issues, employer buyout offer, industry-standard early retirement? Often reasonable.
• Early retirement without good reason: Retiring at 55 when you're healthy and could keep working, right when support is due? Courts may impute continued employment income.

See our Grey Divorce article for more on retirement and support.

Recipient Remarriage or Cohabitation

Remarriage: If the recipient remarries, the payor can apply to reduce or terminate support. The logic: the recipient now has a new partner who can contribute to household expenses. Their "need" has likely decreased.

Important: Support doesn't automatically stop when the recipient remarries. You need to apply for a variation.

Cohabitation: Living with a new partner in a marriage-like relationship can also affect support, but it's more fact-specific. Courts consider:

• How long have they lived together?
• Do they share expenses?
• Is it a committed, marriage-like relationship?
• Does the new partner contribute financially?

Health Changes

Payor becomes ill/disabled: If the payor can no longer work due to illness or disability, that's grounds to reduce or terminate support. You'll need medical documentation.

Recipient's health improves: If the recipient was unable to work due to health issues when support was set, and their health has significantly improved, the payor may argue they should now be employed.

Recipient's health worsens: If the recipient develops health issues that increase their needs or limit their ability to become self-sufficient, they might apply to increase support.

Income Changes

Payor's income drops significantly: Beyond job loss, other income drops (business downturn, reduced hours, industry decline) may justify reduced support. The drop must be significant and beyond your control.

Payor's income increases significantly: The recipient might apply for increased support if the payor gets a major raise or windfall. However, courts don't always increase support just because the payor earns more—especially if the original support was adequate.

Recipient's income increases: If the recipient becomes significantly more self-sufficient (new job, promotion, business success), the payor may argue support should decrease.

The Variation Process

How Long Does It Take?

If you agree: A consent variation can be done in weeks. You sign the agreement, file it with the court, and it becomes an order.

If you don't agree: Contested variations typically take 6-12 months to get to a hearing, sometimes longer depending on court backlogs. Your location matters—some Ontario courts are faster than others.

During the process: The original support amount stays in effect until changed by court order. If you stop paying or change the amount on your own, you could be in contempt and owe arrears.

Interim Variations

If your situation is urgent (e.g., you've lost your job and literally cannot afford the current support), you can ask for an interim variation while the full case proceeds. Courts can grant temporary changes pending the final hearing.

Changing a Separation Agreement

If your support was set by a separation agreement rather than a court order, variations are harder.

Agreements Are Contracts

A separation agreement is a contract. Courts are generally reluctant to override what two adults negotiated and agreed to. The bar for changing an agreement is higher than changing a court order.

When Courts Will Vary Agreements

Courts may vary a separation agreement when:

• There's a material change in circumstances significant enough that enforcing the original terms would be unfair
• The change was truly unforeseeable at the time the agreement was signed
• Enforcing the agreement would cause serious hardship

The "Final" Problem

Some separation agreements include language like "support is final" or "this spousal support shall not be varied." This creates an even higher bar for changes.

Courts can still vary such agreements, but you need to show that:

• Circumstances have changed so dramatically that the original agreement no longer reflects reality
• Enforcing the agreement would be unconscionable (shocking to the conscience)

This is a very high bar. If you signed an agreement with "final and non-variable" support, changing it later is difficult but not impossible.

Retroactive Variations

Can a variation be backdated? Sometimes.

When Backdating Happens

Courts may make a variation retroactive (effective from an earlier date) when:

• There was a delay in bringing the application that wasn't the applicant's fault
• The other party was aware of the change but didn't adjust payments
• Backdating is fair in the circumstances

When Backdating Doesn't Happen

Courts are reluctant to backdate when:

• The applicant delayed unreasonably in bringing the motion
• The recipient relied on and spent the support payments in good faith
• Backdating would create serious hardship

When Courts Say No

Not every variation application succeeds. Courts deny variations when:

• The change isn't "material" enough. Minor income fluctuations or temporary setbacks usually don't justify variations.
• The change was voluntary. Quitting your job, taking a lower-paying position by choice, or making lifestyle changes that reduce income don't typically qualify.
• The change was anticipated. If the original order contemplated this possibility, it's not a "change."
• The payor isn't being honest. If evidence suggests the payor is hiding income or assets, courts won't reward that with reduced support.
• Insufficient effort to mitigate. If you lost your job but made no real effort to find another one, courts may impute income rather than reduce support.

Practical Tips

For Payors Seeking to Reduce Support

• Document everything. Keep records of job searches, medical appointments, retirement planning, etc.
• Act promptly. File your motion soon after the change occurs. Delays hurt your case.
• Keep paying. Don't stop or reduce payments on your own. Pay the ordered amount until it's officially changed.
• Be reasonable. Courts look more favorably on people who propose fair adjustments rather than trying to eliminate support entirely.

For Recipients Seeking to Maintain or Increase Support

• Document your ongoing need. Keep records of expenses, job search efforts (if applicable), health issues, etc.
• Respond promptly. If your ex files a motion, don't ignore it. Missing deadlines can result in orders being made without your input.
• Challenge false claims. If your ex claims they lost their job but you know they quit, or claims illness but is actually healthy, gather evidence.
• Show your efforts. If you're expected to become self-sufficient, demonstrate what you're doing toward that goal.

Try the Calculator

If circumstances have changed, run the calculator with your current incomes to see what support might look like under today's circumstances.

This gives you a baseline for what a variation might result in—though remember that courts have discretion and won't simply recalculate using a formula.

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Related Articles

• How Long Does Spousal Support Last? — Duration rules and when support ends
• Grey Divorce — Retirement and support after 50
• Imputed Income — When courts calculate income differently
• Lump Sum vs Monthly Support — Alternatives to ongoing payments

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