Material Change
What is a “material change”?
A “material change” in the context of family law in Ontario refers to a significant alteration in the circumstances of either party that, had it been known at the time, would likely have resulted in a different order or agreement. In other words, the order can be changed or ended due to a substantial change in circumstances.
This change must be substantial, not trivial or insignificant, and of a continuing nature.
When does a material change arise?
It often arises in situations such as unexpected job loss, forced early retirement, bankruptcy, or the initiation of a new relationship that entails additional support obligations. Crucially, the change must have been unforeseen at the time the original court order was made, making the order unfair or unreasonable under the new circumstances.
What ruling did the Supreme Court make regarding material change?
In Gordon v. Gordon, The Supreme Court of Canada has clarified that the assessment of a “material change” is based on three factors as follows:
- A change in the condition, means, needs or circumstances of the child and/or ability of parents to meet those needs;
- The change must materially affect the child; and
- The change was not foreseen or could not have been contemplated by the judge who made the first order.
This case sets a threshold requirement. A material change must be outside what was actually contemplated by the parties at the time the order was made. This definition aims to prevent parties from relitigating issues already considered and rejected, thereby ensuring that applications to vary a court order are not treated as appeals of the original decision.
Licata v. Shure (2022) reaffirmed the previous ruling, emphasizing that the legal test for material change: it must be an unforeseen change, that if anticipated, would likely have resulted in different terms in the original order.
What else can establish a material change?
Further analysis and interpretation by the courts emphasize that even anticipated changes, like the cessation of child support or a spouse’s repartnering, can constitute a material change if the specific implications of such events were not fully accounted for in the initial agreement or order. The courts have been mindful to differentiate between changes that were explicitly considered and those that, while potentially foreseeable, were not concretely addressed in the original legal arrangements.
How old must the final order be to request a change?
Support payments must be at least 6 months unless a judge gives you permission. This same applies to agreements for support payments which must be 6 months old before requesting a change.