Variation Proceedings
A Separation Agreement or Final Order can be varied (changed) on consent between the parties or by bringing a Motion to Change in Court.Depending on the issue subject to variation, the Family Law Act, Children’s Law Reform or the Divorce Act provides parties with the authority to seek a variation. Often, Motions to Change are brought for variations with respect to the following issues:
- Child and/or spousal support payments made at least six months ago;
- Decision making; and/or
- Parenting schedule.
The party who is seeking the change must establish that there has been a material change in circumstances since the Final Order was rendered or the Separation Agreement in Ontario was executed by the parties or that evidence not available at the Hearing or during negotiations has surfaced.
For instance, a material change in circumstances when a Motion to Change a spousal support Order is brought includes:
- Significant increase to the payor’s income;
- Termination of child support;
- Financial change in circumstances;
- Retirement;
- Remarriage; and/or
- Child starting post-secondary education.
Step-by-step process for filing a variation order
Determine if you have legal grounds for a variation
Your current circumstances should reflect that existing court orders are unfair or unworkable. Whether it is job loss, relocation, remarriage, or a change in a child’s needs, Ontario courts approve a variation only with substantial proof.
Gather supporting documents
If you’re requesting a change in spousal or child support, provide updated financial statements, proof of income changes, or employment termination letters. If the variation involves custody, provide medical records, school reports, or proof of a new living situation.
Complete and file a Motion to Vary
Failing to complete the paperwork correctly can lead to delays or rejection. Work with a family lawyer in Etobicoke to ensure appropriate court forms are filled and submitted as per Ontario family law.
Serve the documents to the other party
They have the right to respond and either agree or oppose the request. Before a court hearing, the judge may mandate a mediation to negotiate a fair solution. If no agreement is reached, the case will proceed to a hearing, where both parties provide supporting evidence to their arguments.
If the court grants your request, a new order will be issued, replacing the previous one. Each case eventually turns on its case-specific factors. Contact our family lawyers in Etobicoke for assistance in this regard.
Frequently Asked Questions
What qualifies as a material change in circumstances for a Motion to Change in Ontario?
A material change is a significant, ongoing change that could not reasonably have been anticipated at the time the Final Order was made or the Separation Agreement was signed. Minor income fluctuations, temporary lifestyle changes, or dissatisfaction with the original terms do not qualify. Courts look for changes such as sustained income increases or losses, retirement, termination of child support, serious health issues, or a fundamental shift in parenting arrangements.
How long do I need to wait before bringing a Motion to Change a support order?
While there’s no strict waiting period, courts generally expect stability before entertaining a Motion to Change. In practice, many judges prefer that support payments have been in place for at least six months, unless an urgent or exceptional circumstance exists. Filing too soon after an order risks dismissal, especially if the change appears temporary or foreseeable.
Can a variation apply retroactively if circumstances changed months ago?
Courts may allow retroactive variations, but the seeking party must show they disclosed the change promptly, acted in good faith, and did not delay bringing the motion strategically. Ontario courts also verify if the other party relied on the existing order to meet expenses, especially child related costs. Retroactive relief becomes less likely when the applicant waited months without disclosure or continued benefiting from the original arrangement.
How does remarriage or a new partner affect spousal support variation?
Remarriage or cohabitation does not automatically terminate spousal support. If you wish to appeal to stop payments, you must file a formal appeal.
Ontario courts will check if recipient’s financial circumstances have significantly changed as a result of their new relationship. Judges consider shared expenses, housing contributions, and overall financial interdependence. Courts also distinguish between compensatory and needs based support. In some cases, remarriage has little impact. In others, it supports a reduction or termination if dependency decreases.
Is mediation required before bringing a Motion to Change in Ontario?
Mediation is not strictly mandatory, but is highly encouraged. Judges often ask whether parties attempted mediation or negotiation, especially in parenting or support matters. Failure to attempt mediation without a valid reason can negatively affect cost awards or judicial perception. Some courts may direct parties to attend mediation after a motion is filed.