Circumstances change as time progresses and this is recognized under both provincial and federal legislation. The Court can make a new Order when the circumstances change. The change must be a material change in circumstances. This is a fact or a group of facts, if known at the time, would have led to a different Order. Often, these facts include the loss of a job or lower income for a payor spouse, or the recipient spouse obtaining employment or children leaving their home. Once a new circumstance is established, the Court can make a new Order, considering the parties’ present circumstances.
Often in our difficult economic times, people lose their jobs and cannot pay their spousal or child support. In these circumstances, the Courts may grant a retroactive variation application to not only lower ongoing support but to delete arrears of support. On such applications, the applicant must establish that they have a much lower income currently and that this is unlikely to improve. They must also establish that they have no other resources like assets from which to pay support. In this regard, the Court looks at applications carefully to ensure that the party applying for relief has paid reasonable support when they had the money and is unlikely to be able to pay support in the future at current levels through no fault of their own.
These applications are very important in dealing with the Family Maintenance Enforcement Program. This is a free program whereby a recipient of support can register a separation agreement or Court Order outlining child support and spousal support for enforcement. Once the Order or agreement is registered, the payor is notified and will pay directly the money to the program, who will forward it to the recipient. If you do not pay support and are in this program, FMEP can garnish your wages, seize your assets, have your license and passport cancelled and ultimately request you be incarcerated for non-payment of support. Quite often they will discontinue enforcement if you are in financial problems and bring a variation application respecting your support.
THE IMPORTANCE OF A RELEASE OF SUPPORT AND FAMILY LAW AGREEMENTS
Parents can never release their obligation to pay child support between each other. A person who has an entitlement to spousal support can always release the other party of the requirement to pay both currently and in the future. Recently, the Supreme Court of Canada has upheld such a release and said it was a bar to a person claiming spousal support against their husband. In this decision, the Court noted that adults had the right to finalize their affairs and the Court also noted that it was important that the wife had granted the release after obtaining independent legal advice in a situation where she was not under any inappropriate influence by her ex-husband. The Court also reviews the overall fairness of the agreement but indicated this was of less importance than the legal advice and the release. As such, it is important to note that the requirement to pay support and the entitlement to it can be varied or eliminated by agreement when joined by proper legal advice to both parties. If you seek this type of solution, you should consult with family law lawyer like those at Dubas & Company and have a proper agreement done up.