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What “Material Change” is Not: Some Real-Life (and Perhaps Surprising) Examples

change

What “Material Change” is Not: Some Real-Life (and Perhaps Surprising) Examples

Recently we wrote about the concept of “material change” in Separation Agreement Rolled into a Court Order – “Material Change of Circumstances” Still Required which involves the notion that a court-imposed order requiring a parent or spouse to pay support may have been fair at the time it was handed down, but subsequently becomes unfair due to unforeseen circumstances. Where a later court finds that such “material change” has taken place, it may have the authority in the right circumstances to vary the initial order accordingly.

This determination of what constitutes “material change” is not always straightforward. Indeed, some scenarios may intuitively seem to qualify on first blush, but on closer examination turn out not to meet the legal standard at all.

Here are a handful of recent and older cases that illustrate this point:

• Early retirement

In Innes v. Innes, the 62-year old support-paying husband decided to take voluntary early retirement, which meant his income would decrease from $200,000 to about $70,000 per year. Finding that he had done so for “lifestyle reasons” related to his new wife and a fondness for golf and vacations (rather than for unexpected health reasons, for example), the court declined to reduce or terminate the $2,000 in monthly support he was obliged to pay his former first wife of 26 years, finding there was no “material change” in the circumstances.

• Bankruptcy

In a case called Brothers v. LeBlanc, the common law husband’s’ bankruptcy was not enough to persuade the court to reduce his obligation, embodied in a separation agreement, to make $1,000 monthly mortgage payments and to pay off a $129,000 mortgage on the former matrimonial home. While accepting that the man’s snow-removal and heavy-equipment operating business had experienced a significant downturn since the agreement was signed four years earlier, the court found that the man was in good health and that the local construction was booming; he should be able to earn close to $90,000 a year if he put his mind to it.

• Supporting a new family

In Couvillon v. Couvillon, the husband failed in his bid to have his child support obligations under a separation agreement reduced. While it was true that he now had new financial responsibilities arising from his decision to marry a second time, his plans to do so were already in place when the separation agreement was negotiated with his first wife. As such, there was no “change” in the legal sense, since his added responsibilities were actually very foreseeable.

As these cases illustrate, “material change” is not an easy concept to pin down. We can help navigate the law and apply it to your specific situation.

For the full text of the cited decisions, see:

Innes v. Innes, 2013 ONSC 2254 http://canlii.ca/t/fx6rv

Brothers v. LeBlanc, 2013 ONSC 4073 http://canlii.ca/t/fzcm6

Couvillon v. Couvillon (1996), 18 R.F.L. (4th) 316 (Ont. Gen. Div.)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.