1. What Is a Material Change in Circumstances?

2. Can Spousal Support Be Reduced if the Payor's Income Decreases?

3. What if the Recipient's Income Increases?

4. What if the Payor's Income Increases?

5. Can Spousal Support Change if Someone Loses Their Job?

6. Can Retirement Change Spousal Support?

7. Does Remarriage or a New Relationship Change Spousal Support?

8. Can Spousal Support Be Terminated Completely?

9. What Is the Difference Between a Variation and a Review?

10. What if Spousal Support Is Set Out in a Separation Agreement?

11. Can You Simply Stop Paying Spousal Support?

12. How Bridgestone Law Can Help

13. Conclusion

Introduction

A spousal support arrangement that was appropriate when spouses first separated may not remain appropriate forever.

People change jobs. Incomes increase or decrease. Children grow older. A recipient may become more financially independent. A payor may retire. Either spouse may enter a new relationship.

When circumstances change, one of the first questions may be: Can spousal support be changed?

In Alberta, the answer is often yes, but a change in someone's circumstances does not automatically change their spousal support obligation.

Where support is contained in a court order, a spouse seeking a variation will generally need to establish the legal requirements for changing that order. Under the Divorce Act, a material change in the condition, means, needs or other circumstances of either former spouse can provide the basis for varying a spousal support order.

A material change is generally a significant and continuing change that, if it had been known when the existing order was made, would likely have resulted in a different order.

Where support is governed by a Separation Agreement, the analysis may be different. The wording of the agreement, including any review, variation, termination or finality provisions, can be extremely important.

For both payors and recipients, it is important to understand that support should not simply be increased, reduced or stopped without considering the existing agreement or court order and the applicable law.

What Is a Material Change in Circumstances?

A material change in circumstances is an important concept when someone wants to vary court-ordered spousal support.

Not every change will qualify.

Generally, the change must be significant enough that, had the circumstances existed when the previous support order was made, they would likely have resulted in a different order.

Examples of circumstances that may lead to a request to reconsider spousal support include:

• a significant increase or decrease in income;

• loss of employment;

• a substantial change in the recipient's earning capacity;

• retirement;

• a significant change in financial need;

• changes affecting the recipient's self-sufficiency; or

• other substantial changes in the spouses' financial circumstances.

Whether a particular event constitutes a material change depends on the facts.

A temporary reduction in income, for example, may be treated differently from a permanent career change resulting in substantially lower income.

The important question is not simply "Has something changed?"

It is whether the change is legally significant enough to justify reconsidering the existing support order.

Can Spousal Support Be Reduced if the Payor's Income Decreases?

Potentially.

A significant decrease in the payor's income is one of the circumstances that may result in an application to reduce spousal support. The Spousal Support Advisory Guidelines specifically recognize decreases in a payor's income as a situation in which updated income information may be relevant when support is reconsidered.

However, the reason for the reduction can matter.

Consider a payor earning $180,000 annually when support is established. Several years later, the payor is laid off because their employer closes and, despite reasonable efforts, obtains replacement employment earning $110,000.

That may present a legitimate basis for reconsidering support.

Compare that with a payor who voluntarily leaves a $180,000 position to take a substantially lower-paying job primarily to reduce their support obligation.

The court may examine whether the income reduction is reasonable and may, in appropriate circumstances, consider whether income should be attributed or imputed to the payor rather than simply accepting the lower income. The SSAG materials specifically recognize that questions about the reasonableness of an alleged income reduction can arise on variation.

A reduction in income therefore does not automatically mean a proportional reduction in support.

What if the Recipient's Income Increases?

An increase in the recipient's income may also affect spousal support.

Suppose a recipient was earning $30,000 annually when support was established. Over several years, they complete additional training, return to full-time employment and begin earning $80,000.

That change could potentially affect the amount of support required.

However, increased income does not automatically eliminate entitlement.

The reason support was originally awarded remains important.

For example, following a lengthy marriage, support may compensate a spouse for career opportunities sacrificed while raising children or supporting the other spouse's career. Even if the recipient later earns a reasonable income, a significant difference in earning capacity may remain.

The recipient's increased income may therefore result in reduced support rather than complete termination.

The SSAG can assist with calculations involving increased recipient income, but continuing entitlement must still be considered.

What if the Payor's Income Increases?

An increase in the payor's income can be more complicated.

A recipient should not automatically assume that every post-separation raise, promotion or increase in business income entitles them to more spousal support.

The court may need to consider whether the increased income is sufficiently connected to the circumstances underlying the recipient's support entitlement.

For example, imagine spouses separate after a long marriage during which one spouse made significant sacrifices that allowed the other to develop a professional career. Several years later, the payor's income increases substantially as that career continues to develop.

That situation may require a different analysis from a short relationship followed many years later by an income increase entirely unrelated to the marriage.

The SSAG specifically identify post-separation increases in the payor's income as an area requiring a case-by-case assessment rather than the automatic application of a formula.

Can Spousal Support Change if Someone Loses Their Job?

Job loss may constitute a significant change, but it does not automatically suspend or terminate spousal support.

The circumstances surrounding the unemployment will be important.

The court may consider:

• why the employment ended;

• whether the job loss was voluntary or involuntary;

• whether the payor is actively looking for replacement employment;

• the payor's qualifications and earning capacity;

• whether the unemployment is temporary;

• whether severance or other compensation was received; and

• the payor's overall financial circumstances.

Consider a payor who is unexpectedly laid off after 15 years with the same employer and immediately begins searching for comparable employment.

That situation is very different from someone voluntarily quitting their job and making little effort to obtain new employment.

A person who loses employment should also remember that an existing court order does not simply disappear. If support needs to be changed, appropriate steps may need to be taken to vary the order.

Can Retirement Change Spousal Support?

Yes, retirement can potentially result in spousal support being reconsidered.

However, retirement does not automatically end spousal support.

Retirement can substantially change a person's income. Employment earnings may be replaced by pension income, CPP, investment income, RRSP withdrawals or other retirement resources.

The recipient's circumstances may also change as they begin receiving their own retirement income.

The reasonableness and timing of retirement can be important.

For example, a 67-year-old payor retiring after a lengthy career may present a very different situation from a 52-year-old high-income professional voluntarily retiring despite remaining capable of working.

Following a long marriage, the recipient may also continue to have a strong compensatory claim for support even after the payor retires.

Retirement should therefore be assessed carefully rather than treated as an automatic termination event.

Does Remarriage or a New Relationship Change Spousal Support?

Not automatically.

A recipient's remarriage or new relationship may affect their financial circumstances, particularly where support is substantially based on financial need.

However, remarriage does not necessarily erase the economic consequences of the previous relationship.

Consider a spouse who remained outside the workforce for 20 years raising children and suffered a significant long-term reduction in earning capacity.

If that spouse later begins living with a new partner, the new relationship may affect their financial need, but it does not necessarily eliminate the career disadvantages created during the marriage.

The SSAG therefore treat remarriage and repartnering as circumstances requiring individualized assessment rather than applying an automatic formula.

Similarly, the payor's remarriage does not automatically eliminate their obligation to support a former spouse.

Can Spousal Support Be Terminated Completely?

Yes, in some circumstances.

A variation does not necessarily mean simply adjusting the monthly amount. A spouse may seek to have support terminated altogether.

Whether termination is appropriate depends on factors such as:

• the recipient's continuing entitlement;

• changes in the spouses' incomes;

• the recipient's progress toward self-sufficiency;

• the length and history of the support obligation;

• the purpose for which support was originally awarded; and

• the terms of the existing agreement or order.

For example, following a shorter relationship, support may have been intended primarily to help a recipient retrain and transition back into full-time employment.

If that recipient completes the anticipated training, obtains stable employment and becomes financially independent, there may eventually be a basis to consider termination.

Following a long marriage involving substantial economic disadvantage, however, termination may be considerably more difficult to establish.

What Is the Difference Between a Variation and a Review?

A variation and a review are not the same thing.

For a variation of a court-ordered spousal support obligation under the Divorce Act, a material change in circumstances is generally required.

A review operates differently.

Where an order specifically provides for a future review, the support issue can be reconsidered in accordance with the terms of that review without necessarily requiring the spouse to first establish a material change.

For example, an order might provide that support will be reviewed after the recipient completes a three-year educational program.

When that time arrives, the parties can examine what has happened: Did the recipient finish the program? Are they working? What are their current earnings? Has their financial position improved?

This is why the wording of a support order or agreement is so important.

A review date is not necessarily an end date.

What if Spousal Support Is Set Out in a Separation Agreement?

Where spouses have negotiated spousal support through a Separation Agreement, the agreement must be reviewed carefully before determining whether support can be changed.

Some agreements expressly permit variation when there has been a material change.

Others establish scheduled reviews.

Some agreements may specify particular events that cause support to terminate.

Others may contain provisions intended to provide significant finality, such as a waiver of future support or a fixed lump-sum settlement.

The SSAG themselves do not give a court authority to simply reopen a final agreement because a different result would be produced using current SSAG calculations.

This is one reason independent legal advice is important before signing a Separation Agreement. Language intended to create certainty today may have significant consequences years later.

Example: A Significant Change in Income

Consider Mark and Laura, who separated after 18 years of marriage.

At separation, Mark earned $190,000 annually and Laura earned $45,000. Laura had spent several years working reduced hours while raising their children.

Spousal support was established based on their circumstances at that time.

Five years later, Laura has returned to full-time employment and now earns $95,000. Mark's income remains approximately the same.

Laura's increased income may provide a basis to reconsider the amount of support.

However, it does not necessarily mean support should immediately terminate. The length of the marriage, the reason support was originally payable, Laura's continuing economic disadvantage and the terms of the existing order or agreement would all need to be considered.

The appropriate outcome might be reduced support, continued support at a different amount, or potentially termination depending on the complete circumstances.

Can You Simply Stop Paying Spousal Support?

Generally, you should not simply stop paying support required by an existing court order because you believe your circumstances have changed.

The existing order remains important unless and until it is properly changed or terminated.

For example, losing a job does not automatically rewrite the support order.

If the payor simply stops making payments, arrears may accumulate while the existing obligation remains in effect.

Similarly, a recipient should not simply assume that they are entitled to a higher amount because the payor received a raise.

Where circumstances have significantly changed, obtaining legal advice promptly can help determine whether a variation should be negotiated or sought through the court.

How Bridgestone Law Can Help

Changes in employment, income, retirement or personal circumstances can make an existing spousal support arrangement difficult or inappropriate.

At Bridgestone Law, our Calgary family lawyers can review your existing Separation Agreement or court order, assess whether circumstances have materially changed, and help determine whether spousal support should be increased, reduced, reviewed or terminated.

We can also assist with updated income disclosure and Spousal Support Advisory Guideline calculations, negotiate proposed changes with your former spouse, or bring or respond to a court application where an agreement cannot be reached.

Acting promptly can be particularly important where a payor's income has substantially decreased or support payments have become difficult to maintain.

Conclusion

Spousal support can be changed in Alberta, but it does not automatically change when someone's circumstances change.

For court-ordered support, establishing a material change in circumstances is generally an important threshold requirement. Changes in income, employment, retirement, financial independence and other circumstances may justify reconsidering support, depending on the facts.

Where support is contained in a Separation Agreement, the wording of the agreement can significantly affect whether and how support may be changed.

Most importantly, neither spouse should assume that a major life change automatically increases, reduces or terminates support.

If your financial circumstances have changed since spousal support was established, a family lawyer can help you understand whether the change is legally significant and what steps may be available.

Bridgestone Law assists clients in Calgary and throughout Alberta with spousal support variations, Separation Agreements and other family law matters.