Frequently Asked Questions about Getting or Changing a Spousal Support Order
You can start your application through a lawyer, either one that you hire privately (retain), or get assigned to you through Legal Aid, if you qualify. You can visit Legal Aid’s website for more information.
You can also start a court application without a lawyer.
As a general rule, if both you and the other party live in Nova Scotia, you can contact the court nearest to you to start the court process. Many courts, like the Family Court and Supreme Court (Family Division), will have an intake process, where you can get help from a court officer to start your application. If the other party lives outside of Nova Scotia, different rules may apply, depending on where they live, and whether you are divorced from that person.
If you are living in Nova Scotia, and the other person lives outside of Nova Scotia, you may have to use the ISO process. ISO stands for the Nova Scotia Interjurisdictional Support Orders (ISO) Act. This is the law that governs the process used for getting and changing (‘varying’) support orders involving Nova Scotians and parties who live in other jurisdictions, where provincial or territorial laws (not the federal Divorce Act) are being applied. If you are divorced from the other person (or are in the middle of a divorce proceeding), you probably will not use the ISO process.
To start an application under ISO, you must complete and swear a support application before a Commissioner of Oaths or a notary, where required. You may want to consider having your documents notarized in any event, just to be on the safe side. You should use standard ISO forms for your application. ISO forms are available at the court near you, or here.
Many forms for starting applications are available online, as well. You should get advice from a lawyer or speak with court staff to make sure you are filing the right documents for your case. You will usually have to file several documents to start an application, not just one or two.
If you are addressing spousal support issues as part of an ongoing (not yet final) divorce proceeding, you will deal with these issues wherever the divorce was filed.
You can apply to change, or ‘vary,’ your court order if you have a material change in circumstances. This means that something important in your situation or the other party’s situation has changed since the last order was made, and you need to change something in your order as a result. This issue can be complicated to figure out as the change normally cannot have been known about at the time you got your last order. Having advice from a lawyer is very helpful in these situations.
Generally, the same process applies for changing an order as it does for getting an order in the first place.
If you have a court order that you want to apply to change, you use the same basic rules around where to apply as if you have never had an order before. Where you file your court application will depend on what issue you are applying to deal with, and where you or the other party, and perhaps the children (if applicable) live. It may also depend on whether or not you were divorced from the other party. The Supreme Court (Family Division) and the Family Court operate using different sets of court rules, and may view jurisdiction differently.
The rules will also be different if you have a Corollary Relief Order and your ex-spouse lives in another province or if you were never married and your ex-partner lives in another province. You should contact a lawyer or the court to find out more information about what process applies in your case.
For a variation application (an application to change a court order), you must be able to show that there has been a material change in circumstances since the last order was made.
A material change in circumstances, sometimes called a ‘substantial’ change in circumstances, means that something important has changed in your situation, or your ex-partner’s situation, since your last order was made. As a result of this change, you feel you need to update your order. The change needs to be substantial, and not just a minor change. You cannot have known about the change at the time the last order was made.
For applications to change spousal support, examples of a substantial change in circumstances could include:
- your income changed (you lost your job, or are earning more or less money than you were when the order was put in place)
- the other party’s income changed
- the other party’s circumstances have changed, for example, they are now remarried
That depends on your situation. Your order may already say how long the support is to be paid, with an end date for the support. Your order may indicate that if a certain event occurs, the order can be reviewed at that time. For example, the order may say that the spousal support is to be reviewed if the party receiving support becomes employed or gets remarried. You will probably have to make an application to the court for the order to be changed or reviewed.
If you are not sure whether you should make an application to change or stop your spousal support, speak to a lawyer for advice.
The Divorce Act allows parties who are divorced and live in different provinces to make a special kind of application to vary (change) a support order, without having to travel to the other province to make the application.
This application is called a ‘provisional’ variation application. There is a special process involved with these applications.
Either person can apply to change the support order. The application can deal with child and/or spousal support as long as the parties are varying a final order made under the Divorce Act in a Canadian province or territory. It is helpful for you to have a complete, current home or work address where the other party may be personally served with notice of the application.
The process starts by filing the correct documents in the Supreme Court or Supreme Court (Family Division) nearest to where you live. Court staff will direct you as to what to file. The process involves several different stages and government departments, so the process can be long, and is sometimes complicated.
The court in Nova Scotia will set a time for the applicant, the person making the application, to appear in front of a judge. The judge will make a provisional order based on the information and evidence presented by the applicant. The other party is not provided with notice of the hearing.
The provisional order is not enforceable until it is confirmed by the court in the province or territory where the other person lives. The provisional order is sent to the other province or territory where the other party lives, along with the documents filed by the applicant and the transcript from the Nova Scotia hearing.
A second court hearing will take place in the province or territory where the other party (the ‘respondent’) lives. The respondent is entitled to be at that hearing. The applicant is not provided with notice of the hearing. The judge in the other party’s jurisdiction considers all of the evidence, including the documents and transcript from Nova Scotia, as well as the evidence from the respondent, and makes a decision. Sometimes the judge requires more information from the applicant in Nova Scotia in order to make a decision. In that event, the applicant will be notified of the requirement to provide further information.
After considering all of the evidence, the judge in the respondent’s jurisdiction can decide to confirm the provisional order entirely or with variations, or can reject the provisional order and make a different order instead. The applicant will receive a copy of the order that was made by the court in the other party’s jurisdiction.
You should get advice from a lawyer before filing any application.