“She’s living with someone now, so I’ve stopped paying.” “I turned 65 in March, so that’s finished.” Statements like these come up often when spousal support has been running for a while, and each one can lead to a costly surprise. Spousal support does not usually end because a life event seems as if it should end it. It ends or shrinks when the order or agreement says so, when the parties formally agree, or when a court says so.
That does not mean you are stuck paying a fixed amount forever. Ontario and federal law both allow a change where circumstances have really shifted, and the person receiving support also has an interest in having clear terms. It helps to approach the issue as a question of paperwork and proof, rather than a question of what is fair in the abstract.
Please read this as general information, not legal advice. The wording of your particular order or agreement can change the answer, and the examples below are hypothetical.
Read your document first
The first task is to read the actual words. Three common kinds of term can settle the issue, or at least frame it.
An end date or event. The order may say support ends on a certain date, or when something happens, such as the recipient’s remarriage or the payor’s retirement. If so, that term generally controls, although the details of what counts as “retirement” or “cohabitation” can spark a dispute of their own.
A review clause. Some orders set a date when support will be looked at again. A review is usually different from a variation, since it may not require proof of a change in circumstances, and the document should spell out the process.
A non-variation clause. Some separation agreements say support can never be changed, or can only be changed in narrow circumstances. These are taken seriously. Such a clause does not always have the last word, but it can make a change much harder, and it is one of the first things to show a lawyer.
Also check where the terms come from. An order made under the Divorce Act is varied under section 17 of that Act. An order under Ontario’s Family Law Act is varied under section 37. A separation agreement that has been filed with the court under section 35 of the Family Law Act can generally be changed through a motion to change under Rule 15. An agreement that was never filed may need a different route, such as an application for support, where courts apply the test from Miglin v. Miglin, 2003 SCC 24. That test looks at how the agreement was made and whether it still fits the parties’ reasonable expectations.
The legal test: a real change since the last order
Under section 17(4.1) of the Divorce Act, before varying spousal support, a court must be satisfied that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the last order. Section 37(2) of the Family Law Act uses the phrase “material change” in the dependant’s or respondent’s circumstances.
Courts have explained this as a change that, had it been known at the time, would likely have produced a different result. L.M.P. v. L.S., 2011 SCC 64, is an often-cited authority. The change generally has to be significant and lasting. Something already contemplated in the original order may not qualify. For example, if an order says it was made knowing the payor would retire at 65, that retirement alone may not be a change. If a spouse was expected to return to work once the youngest child started school, that development may have been built in.
Once a change is proven, section 17(7) directs the court to consider the same broad objectives that apply to any spousal support order: recognizing economic advantages and disadvantages from the marriage or its breakdown, apportioning child care consequences, relieving economic hardship, and promoting self-sufficiency as far as practicable within a reasonable time. The court does not start over, but it does decide what variation is appropriate in light of the change.
Situations that often lead to a request
The payor lost a job or earns less. A genuine layoff from one of Peel’s warehouses or a plant closure is a classic example. The court will want to see what happened, your job search efforts and your present income. A voluntary step down is another matter. If you quit, move to cash work or take a much lower job without a good reason, income may be imputed at what you could reasonably earn.
The payor is retiring. Retirement is often a legitimate reason for a change, particularly at a normal age and after a long career. The court may ask whether it was in good faith, what pension and investment income is available, and what notice you gave. Retiring early, while you could still work in a physically manageable job, invites questions.
There is also a specific issue called double recovery. If your pension was valued and shared at separation as part of equalization, and support is later sought from the income of that same pension, Boston v. Boston, 2001 SCC 43, says this may be unfair in some situations. The analysis depends on the type of support, whether the recipient has made reasonable efforts to use their assets and become self-sufficient, and other facts.
The recipient earns more or has become self-sufficient. Where support was meant to be transitional and the recipient has built a career or finished training, that may justify a reduction. Compensatory support may continue, however, as it reflects past sacrifices that do not disappear simply because the person now has a job.
The recipient lives with someone or remarries. This is probably the most misunderstood situation. Remarriage or a new relationship does not automatically end spousal support, unless the order or agreement says so. The court considers whether there is a new source of financial support and how that interacts with the original basis for support. Needs-based support may be more affected than compensatory support.
The payor has new obligations. A second family, a serious illness or a disability may be relevant, although a voluntarily assumed lifestyle usually carries less weight.
Time has passed. An old order may become open to review simply because the purpose of support has been achieved, although duration alone is seldom enough. A hypothetical recipient who has received support for 12 years following a 10-year marriage, and who is working full-time, could face a strong argument. A recipient of 62 who left the workforce for 25 years to raise children would generally be in a very different position.
Agreeing on the change
If you can agree, things become easier and much cheaper. Options include:
- A consent motion to change. You file a Form 15C with supporting documents, and a judge reviews it. This results in a new order.
- A written amending agreement, which may be filed with the court under section 35 of the Family Law Act if you want it enforced like an order. Where the Family Responsibility Office is involved, make sure that the office receives and can act on the updated terms.
If you and your former spouse are simply in agreement about stopping payments, you still need to document it. A text saying “you can stop paying” is not the same as an order. It may help as evidence later on, but FRO will keep enforcing the existing order until it is changed or the case is properly withdrawn. A former spouse who changes their mind can also create a dispute about the money that was never paid.
Tax treatment is another reason to be careful. Periodic spousal support can be deductible for the payor and taxable for the recipient, if the arrangements meet the Canada Revenue Agency’s requirements. A lump-sum buyout may be treated differently. If you are considering a one-time payment in exchange for ending support, get tax advice as well as legal advice, since it can substantially change the real value of a settlement.
Going to court when you cannot agree
The process for a final order usually starts with a motion to change (Form 15), a financial statement and supporting documents, served by someone other than you. The other person normally has 30 days to respond, or 60 if they live outside Canada and the United States. If you are unable to reach a resolution, the matter moves through a conference and possibly a hearing.
Evidence should be practical. Bring your income records, a termination or retirement letter, your job search log, medical notes, pension statements, details of any new household arrangements you can legitimately prove, and the original reasons or terms showing what the judge or the parties assumed at the time. The Spousal Support Advisory Guidelines may provide a useful range, although they are advisory. They do not by themselves establish that a change has occurred.
Keep paying until the order changes
The temptation to simply stop is strong, particularly after a job loss. Please resist it if you can. Arrears build under the existing order, and FRO can use tools such as support deduction, licence suspension and default proceedings. A court can vary an order retroactively, and section 37(2)(b) of the Family Law Act expressly allows relief from arrears, but those are discretionary remedies, not something you should count on. Delay and poor disclosure weaken your case.
If you truly cannot pay the full amount, tell the other person in writing, give proof, pay what you can, and start the process promptly. The Supreme Court’s decision in Colucci v. Colucci, 2021 SCC 24, was a child support case, but the themes of early notice and full disclosure are useful to anyone seeking relief for the past.
If you receive support
A request to reduce your support can feel like a threat to your housing, but you have rights in this process. Do not ignore the motion. Gather evidence about your needs, your efforts to become self-sufficient, your health and the ways the relationship affected your earning power. If your income has improved, be honest about it, since many orders require disclosure. Hiding a change can harm your credibility and could lead to an order for repayment.
Also, watch the calendar if your support has a fixed term. Section 17(10) of the Divorce Act restricts the court’s ability to restart support after a definite period or specified event has passed. A court can only do so if a variation is necessary to relieve economic hardship arising from a change related to the marriage, and if the new order would have fit the original objectives. So if you believe a term needs extending, raise it before the term ends.
When a party dies
Death is a special case. Under section 34(4) of the Family Law Act, a support order under that Act binds the payor’s estate unless the order says otherwise. The rules differ under the Divorce Act and depend on the document’s wording, and estate law may also provide a claim for a dependant. Support clauses often deal with life insurance as security. If you are drafting or changing support terms, ask about what happens on death, and check that the insurance is still in place.
If you are ready to look at your own situation, gather your order or agreement, your last three years of income records and a brief note of what has changed. Our page on child and spousal support offers more background, and our family law group can review whether your facts are likely to meet the test. Whichever side you are on, an early and well-documented step is usually far less expensive than dealing with the consequences later.