After a divorce or separation has been finalized, there may be changes in an individual’s personal circumstances, or those of their ex-spouse, that create a need to revisit the terms of any arrangement. For example, orders addressing child custody and support payments, spousal support, or the division of property. Even the most carefully crafted arrangements may need to be altered in the face of unexpected life events.
Ontario law provides pathways for individuals to update their previous agreements or court orders, although the process can be complex. With the help of an experienced Toronto variations lawyer, you don’t have to feel stuck with outdated or unfair arrangements. We’ll help you navigate your variation with confidence. To discuss your needs with a member of our legal team today, you can call our Toronto office at (416) 736-0200 or fill out our online contact form now.
What is a Variation in Ontario Family Law?
Under both the Family Law Act and Divorce Act, “variation” refers to a formal request to change a court order or legal document due to a significant change in circumstances. In the context of family law, variations may be applied to:
- Child support orders
- Spousal support orders
- Decision-making responsibility and parenting time arrangements (formerly custody and access)
- Terms within your separation agreement
- And more
It is important to note that there is a difference between amending an existing agreement and seeking a court-ordered variation:
Amending an agreement takes place out of court when you and your former partner can agree on changes amongst yourselves. When you do so, your lawyers will draft an amended agreement that is filed with the court to make it legally enforceable.
You will need to seek a court-ordered variation when you cannot agree on changes with your former partner. The request for a variation of your existing order must prove that a material change in circumstances has taken place since the original order came into effect. A judge will then review evidence that each party submits and decide whether the order should be changed. In general, this process is more formal, lengthy, and expensive.
Common Reasons for Varying Spousal Support, Child Support, and Custody Arrangements
At Gelman & Associates, we can assist new and existing clients who are seeking to vary the terms of a separation agreement or court order. Although any major life change may trigger the need for an amendment, some of the common reasons that clients need to modify a divorce or separation agreement include:
- Significant changes in income or earning potential of either spouse, such as losing a job, becoming disabled, getting a big promotion, or obtaining an advanced degree;
- Substantial changes to a child’s needs or expenses, for example, due to a serious medical condition;
- Cohabitation or remarriage by a spouse who receives support payments;
- A child reaches the age of majority or is no longer a dependent;
- Changes in living arrangements, custody and access, including one parent wanting to relocate with a child;
- Other life changes, such as retirement, major cost-of-living changes, and more.
If you are applying to the court for an official variation, you must be able to show that a material change in circumstances (such as those listed above) has taken place since the original order came into effect.
To be considered compelling by a court, the change in your circumstances must be lasting, significantly affect your needs, and change your ability to pay. Temporary changes or foreseeable changes already addressed in your original order will not qualify for variation.
How to Modify a Post-Separation or Post-Divorce Order in Toronto
There are several ways you can go about modifying your family law agreements and orders in Ontario. These include:
- Negotiated Agreement: When everyone can agree on the general terms and goals of post-divorce modifications, a Toronto family lawyer can formalize the changes through an amended agreement or court order with the cooperation of both parties.
- Mediation & Arbitration: Where former spouses are not on amicable terms, or if they cannot agree on the particular modifications to be made, they may want to engage in mediation with a neutral third party. Mediation offers a cost-effective means of resolving disputes. Where mediation is not successful, parties can also choose to undergo a binding arbitration process.
- Court Application: If parties cannot agree, mediate, or arbitrate, they may seek a court order to finalize the changes. This will include filing an official motion to change, disclosure, a possible hearing, and more. These steps can be costly, and we recommend speaking to a qualified family lawyer for legal advice before pursuing a court-ordered variation.
Depending on the time of order or agreement you are trying to vary, the evidence you need to provide and the process you need to undergo may differ.
Varying Child Support in Toronto
Child support orders in Ontario are treated uniquely compared to other orders, like spousal support orders. Federal Child Support Guidelines and Ontario’s specific Child Support Guidelines provide a formula for calculating appropriate support amounts. These formulas are based on the paying parent’s income, the number of children involved, and the split of parenting responsibilities.
All paying parents must provide child support to some degree, but the amount can be adjusted if they undergo a material change in circumstances. For example, a parent may seek to vary their child support obligations if:
- They lose their job
- They take a lower-paying position
- They retire
- They see a significant increase in their income
- If parenting time arrangements change, and a child now spends at least 40% of their time with each parent
- Special or extraordinary expenses (also called “Section 7 expenses”) increase or decrease over time
- And more
Because child support is considered an inherent right of the child, courts take variations seriously and will always ensure that a child’s needs are being met adequately.
Varying Spousal Support in Toronto
Unlike child support, spousal support is not automatically guaranteed. Spousal support is assessed based on multiple factors, including:
- The means, needs, and living circumstances of each spouse
- The length of the relationship before its breakdown and the roles each spouse played
- And more
Once a spousal order is in place, certain changes in life circumstances might qualify for a variation. For example:
- Job loss or reduction in income by either spouse
- Retirement by either spouse
- Remarriage or cohabitation with a new partner by either spouse
- And more
In Ontario, the Spousal Support Advisory Guidelines (SSAGs) are often used to determine both an original support amount and any adjustments made in the future. Although the SSAGs are not legally binding, courts consult them heavily when looking to establish a fair amount. When it comes to variation cases, the SSAGs help courts assess whether a new amount will better reflect each party’s realities.
Varying Decision-Making Responsibility and Parenting Time Arrangements
Custody decisions (now referred to in Ontario as decision-making responsibility) and parenting time are always based on the best interests of the child. Both the Divorce Act and the Children’s Law Reform Act (CLRA) in Ontario require that courts prioritize the child’s well-being, safety, and stability when deciding upon a variation.
Parents might try to vary their custody or parenting time orders when:
- One parent wishes to move with the child to a different city, province, or country.
- Issues like substance abuse, family violence, or neglect justify a change in parenting time
- The preferences of children have changed as they have grown older
- And more
Courts will generally only approve the variation of a custody order if they can ensure that stability, continuity of care, and strong parental bonds will continue to exist for the child.
How Our Lawyers Can Help With Your Variation Order
At Gelman & Associates, our variation lawyers in Toronto understand that circumstances can change unexpectedly. That’s why we’re committed to helping clients create agreements and orders that reflect their current needs and priorities.
When you work with our variation lawyers, we’ll help you:
- Assess whether your material change in circumstances will meet court standards
- Gather and present financial and parenting evidence
- Negotiate agreements where possible to avoid court
- Advocate for you in mediation, arbitration, or court proceedings
- And more
Our family lawyers have decades of combined experience navigating local Toronto courts and Ontario family law.
Our Lawyers Can Assist With Changes to Custody, Support Agreements, and More
If your life has changed, your family arrangements may need to change, too. If you have experienced a change in circumstances or have found that an existing child custody or support agreement is no longer working in your best interests, our team at Gelman & Associates can review your situation and determine what types of changes should be sought.
Our offices can be reached Monday to Friday from 8 AM to 8 PM. To schedule a consultation, call us at (416) 736-0200 or 1-844-736-0200, or contact us online.
