You’re finished – or are you really?

It is distressing to have so many people who thought their case was finally over come to see me many years later because their ex spouse has brought a motion to change the final order which was made. Cleary you think that once a judge signs an order that ends your case it has ended, that you can get on with your life, and that you can make your future plans without worry. And that is the way it should be.

Unfortunately that is not the way it always plays out. Final orders can be changed if there has been a material change in circumstances. This generally applies to such areas as child related issues such as custody and access and child support, or to spousal support.

When dealing with child related matters it is generally accepted that nothing is permanent and that every issue related to the child remains open to change. That is because the view of the court is to do whatever is in the best interests of the child and if what is in the best interest changes over time then the court will always be prepared to consider changing its prior order.

When dealing with issues between spouses things are a not quite as definite. If a separation agreement is signed with proper legal advice, or if Minutes of Settlement have been signed which gave rise to a subsequent court order, then you must be able to establish an entitlement to a change in the prior order made. And the place to start is with the concept of ‘material change in circumstance’.

In the area of support, for example, many agreements contain a clause by which the parties agree that no change in circumstance will ever warrant a change in support. It is almost (but not always) impossible to achieve a change if that is in your agreement. Another thing to look for is whether the change was reasonably forseeable at the time that the agreement was signed or the final order made. If it was reasonably forseeable than likely a motion to change the final order will not be successful.

An example of how this works is the following based on a recent Ontario case. An ex husband brought a motion in court to terminate spousal support a few years after the final order had been made because his ex-wife was getting married. He argued that the 8 year support order should be terminated early because his ex was now getting married. Unfortunately for him, the court said “no way”. The ex had been in a serious relationship with her future husband to be at the time the divorce agreement had been signed and the final order made. The ex husband was very well aware that the relationship was serious and on going. The marriage was ‘reasonably forseeable’ at the time and it was not now open to the ex husband to take the position that he could not have foreseen the marriage to be. He entered into the support agreement knowing at the time that she would likely remarry and therefore it was not a new circumstance.

What do you do to minimize your chances of your final order being later changed? Make certain that any agreement reached that deals with important ongoing issues are put into a separation agreement and that the agreement itself is as air tight as can be. Even then there will be no guarantee but you will have a much better chance of staving off a future motion to change.

Steven M Bookman is a family law lawyer located in Toronto, Ontario. He can be contacted at 416-488-2243 or at [email protected]. Visit the firm’s web site at www.bookmanlaw.com.