Ferguson v. Ferguson – A Cautionary Tale on the “Material Change in Circumstance” Clause

The case of Ferguson v. Ferguson examines the circumstances in which a Court will vary a previously made award for spousal support. In order to alter an existing spousal support order, a litigant must convince the Court that a material change in the parties’ circumstances has occurred. In this case, the Husband was originally ordered to pay both spousal and child support to the Wife in 2004. When the children turned 18 in 2007 and child support ceased, the Wife successfully argued that the cessation of child support was a material change in circumstances, giving rise to the alteration of her existing spousal support order. After separation, the Husband’s income increased while the Wife struggled to earn a modest income of less than $10,000.00. She was living with arthritis, depression and anxiety, all of which affected her ability to work, and she was required to borrow money from her elderly parents. When the Court examined all of these factors, combined with the end of the Wife’s entitlement to child support, it was clear that she could not subsist on her original quantum of spousal support. As such, Justice Hambly increased her spousal support to a point where it exceeded the total of her original spousal and child support orders. While this result seems harsh, the Court felt it was fair in the circumstances. This case should also serve as a caution to payors who seek to alter their support payments using child support as a material change in circumstances. Instead of decreasing, they could in fact find their support obligation increasing.

This Post Has 3 Comments
  1. In a long-term marriages, spousal support will often continue “indefinitely”. This does not necessarily mean that spousal support will be payable forever. “Indefinitely” in this context could be more accurately interpreted to mean that there would not be a fixed date on which support would terminate. Spousal support would likely be reviewed and varied if there is a material change in circumstances.
    An optimistic support payor may hope that the material change will be that their former spouse obtains new or better employment such that they no longer require spousal support; however the Ferguson v. Ferguson case should serve as a reminder to support payors and support recipients that spousal support could actually increase from the amount that was initially agreed upon after separation. The support recipient in that case could not be expected to support herself given her poor health. Her capacity to earn an income had been substantially diminished since the original spousal support award. In my view, in light of the lengthy relationship and while seemingly unfair from the husband’s point of view, the judge likely came to the correct result which is consistent with what most of society would see as just.

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