GOTTLIEB LAW FIRM

FIX YOUR ORDER:
VARIATION PROCEEDINGS

Variation of Spousal or Child Support:

An individual may apply to the courts to vary spousal or child support under section 37 of the Family Law Act or section 17 of the Divorce Act.

In case of the order of support for a spouse or parent, section 37(2) of the Family Law Act holds that the court must be satisfied that there has been a material change in the dependant’s or the respondent’s circumstances or that evidence not available at the previous hearing has become available.

With respect to spousal support, a material change in circumstances may be the following:

• Substantial increases in the payor’s income;

• A financial change in circumstances;

• A permanent disability in a payor or payee;

• Payee not making reasonable efforts to gain employment;

• Payee becoming eligible for CPP and other pensions;

• Remarriage of payee, payor, or both

• COVID-19 repercussions

The aforementioned examples of circumstances which may result in a variation of support, however, each case is based on its own facts. Similar to section 37(2) of the Family Law Act, section 17(4.1) of the Divorce Act requires that a change in the condition, means, needs, or other circumstances of either former spouse has occurred since the spousal support order.

In terms of child support, under both the Divorce Act and the Family Law Act, a court making a variation in child support must do so in accordance with the Child Support guidelines. In order to vary child support, there must be a material change in circumstances within the meaning of section 14 of the Federal Child Support Guidelines.

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If you are defending a variation proceedings, Gottlieb Law Firm will advise you on how best to position your case to ensure the orders you worked hard to achieve are not whittled away by new orders. This complex area of law is delicate and requires our expert attention.

 Variation of Custody and Access Orders:

The Divorce Act gives courts the authority to vary, rescind or suspend all or part of a final custody order. An application to change your custody order must show that a material change in circumstances exists. A material change is defined as:

1. A change in the condition, means, needs, or circumstances of the child and/or the ability of the parents to meets the needs of the child;

2. The change materially affects the child; and

3. The change was either not foreseen or could not have been reasonably contemplated by the judge who made the order that is sought to be varied.

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Some examples of a material change in circumstances with respect to custody include:

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• A parent starts alienating the child;

• A parents starts abusing the child;

• A parent becomes mentally ill;

• The child does not wish to have contact with a parent anymore

• COVID-19 repercussions

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Sometimes, the Court may decide to issue an interim variation order rather than issue a new final order. This type of order allows the Court to temporarily alter or suspend all or part of an existing order. Speak to our experienced family law lawyers to determine if this is an option for you.

Although the same standards of a material change in circumstances and best interests of the child apply to varying access orders, it is often easier to have an access order varied. With regard to access, changes that would not be material from a custodial standpoint may in fact be material with regard to access. For instance, when a child starts attending school full time, the access order may need to be modified to conform to the child’s new schedule.

Gottlieb Law Firm’s experienced family law lawyers will advise you of when to commence your valuation proceeding, how you can prove your case and obtain a successful outcome.

If you are defending a variation proceedings, Gottlieb Law Firm will advise you on how best to position your case to ensure the orders you worked hard to achieve are not whittled away by new orders. This complex area of law is delicate and requires our expert attention.

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For more information contact Gottlieb Law Firm located in the Greater Toronto Area,

call us at (416) 227-1653 or send us an email at: 

ggottlieb@gottlieblawfirm.com