Making Changes to Child Support

From Clicklaw Wikibooks

As with all arrangements relating to children, there is no such thing as an absolutely final orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration." or agreement for child supportMoney paid by one parent or guardian to another parent or guardian as a contribution to the cost of a child's living expenses.. It is always open to the court to change an order or agreement for child support, providing that the parties' circumstances, or the circumstances of the parties' children, have changed.

Generally speaking, payors will want to apply to have support reduced or terminated when their income has decreased or the children have grown up. Recipients will want to apply to have support increased when the payor's income has gone up or if the children's special expenses have increased.

This section talks about changing orders made under the federal Divorce Act and the provincial Family Law Act, changing orders that were made before the federal Child Support GuidelinesA regulation to the federal ''Divorce Act'', adopted by every province and territory except Quebec, that sets the amount of child support a parent or guardian must pay, usually based on the person's income and the number of children involved. came into effect on 1 May 1997, and changing orders that were made in a different place. This section also discusses claims for retroactive support and the important case of D.B.S. v. S.R.G., [2006] 2 SCR 231.

Divorce Act Orders

Under s. 5 of the Divorce Act, the Supreme Court has the jurisdictionWith respect to judges, the authority of the court to hear an action and make orders; the limits of the authority of a particular judicial official; the geographic location of a court; the territorial limits of a court's authority. With respect to governments, the authority of a government to make legislation as determined by the constitution; the limits of authority of a particular government agents. See “constitution." to vary an order for child support as long as at least one of the spouses is normally living in the province where the court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order. to vary the order is started, no matter which province's courts made the original order.

Section 17 of the Divorce Act gives the court the authority to change, cancel, or suspend orders for support made under that actIntentionally doing a thing; a law passed by a government, also called "legislation" or a "statute." See "regulations.". "Changing" an order is called varying the order. Section 17 says this:

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.
(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.
(6.2) Notwithstanding subsection (6.1), in making a variation order in respect of a child support order, a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied
(a) that special provisions in an order, a judgmentA judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a decision, the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as his or her findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," "findings of fact," and "final judgment." or a written agreement respecting the financial obligations of the spouses, or the division or transferIn law, the act of an owner of a thing giving ownership of that thing to another person, in exchange for money or other property in the case of a sale or in exchange for other rights in the case of a family law agreement. See "family law agreements," "ownership" and "sale." of their propertySomething which can be owned. See "chattels" and "real property.", directly or indirectly benefit a childA person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority.", or that special provisions have otherwise been made for the benefit of a child; and
(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.
(6.4) Notwithstanding subsection (6.1), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.
(6.5) For the purposes of subsection (6.4), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines.

This all boils down to these principles:

  • A court can make an order changing a previous child support order if a change in circumstances has occurred since the order was made.
  • Any new order for child support must be made according to the Child Support Guidelines.
  • The court may make an order for support different from the GuidelinesShort for the Child Support Guidelines, a regulation to the federal ''Divorce Act'', adopted by each province and territory except Quebec, that sets the amount of child support a parent or guardian must pay based on the person's income and the number of children involved. if a previous order or agreement has made special provisions for the care of the child that would make an order under the Guidelines inappropriate.
  • The court may also make an order for support different from the Guidelines if both spouses agree to the order, and reasonable arrangements have been made for the support of the children.

Before the Child Support Guidelines came into effect, an applicantA party who brings an application to the court for a specific remedy or relief. Usually refers to the party making an interim application, but in the Provincial Court can mean the person who starts a court proceeding. See also "court proceeding," "application respondent" and "interim application." had to show that there had been a serious and unforeseen change in circumstances before the court would hear an application to vary an order for child support. Now, an applicant must only show that there has been a change in income or the child's expenses to show that there has been a change in circumstances.

Section 14 of the Guidelines defines a "change in circumstances" as follows:

For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:
(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;
(b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship." or of any child who is entitled to support; and
(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act ...

Financial statements

When an application to vary a child support order is brought, one or both parties may have to produce their financial information. This information is almost always given in a Financial StatementA legal document required by the rules of court in which a party to a court proceeding involving child support, spousal support, the division of property or the division of debt must describe his or her income, expenses, assets and liabilities under oath or affirmation. See "affirm," "oath," and "perjury.", which is Form F8 in the Supreme Court or Form 4 in the Provincial CourtA court established and staffed by the provincial government, which includes Small Claims Court, Youth Court and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. Small Claims Court, for example, cannot deal with claims larger than $25,000, and Family Court cannot deal with the division of family property or matters under the ''Divorce Act''. See "judge" and "jurisdiction.", and which, like affidavits, must be sworn before a notary or a lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor.":

  • The payor must produce a financial statement dealing with his or her income if the payor is paying child support according to the tables.
  • Both parties must produce financial statements dealing with income if custodyIn family law, an antiquated term used by the ''Divorce Act'' to describe the right to possess a child and make parenting decisions concerning the child's health, welfare and upbringing. See "access." is shared or split.
  • Both parties must produce complete financial statements covering income, expenses, assets and liabilities if there is a claimThe assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding. about the children's special expenses, a claim for undue hardshipA term used by the Child Support Guidelines to describe circumstances when payment of the table amount of child support would cause financial difficulty for the payor or the recipient, potentially justifying an award of support in an amount different than the table amount. See "child support," "Child Support Guidelines" and "table amount.", the payor's income is above $150,000 per year, or one or more of the children are over the age of majorityThe age at which a child becomes a legal adult with the full capacity to act on their own, including the capacity to sue and be sued. In British Columbia, the age of majority is 19. The age of majority has nothing to do with being entitled to vote or buy alcohol, although federal and provincial laws sometimes link those privileges with the age at which one attains majority. See "disability" and "infant.".

These new financial statements give the court the information it will need to make a new child support order, if it's willing to vary the original order. Links to and examples of Supreme Court forms are available in Supreme Court Forms & Examples.

Statutory provisions

These are the primary sections of the Divorce Act dealing with varying child support orders:

  • s. 2: definitions
  • s. 4: jurisdiction to make child support orders
  • s. 5: jurisdiction to change orders
  • s. 15.1: child support
  • s. 15.3: child support has priority over spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship.
  • s. 17: variation proceedings

Family Law Act orders

Section 152(2) of the Family Law Act gives a court the authority to cancel, vary, or suspend an order for child support where one of three conditions is met:

(a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made;
(b) evidenceFacts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony." of a substantial nature that was not available during the previous hearingIn law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision" and "evidence." has become available;
(c) evidence of a lack of financial disclosureA step in a court proceeding in which each party advises the other of the documents in his or her possession which relate to the issues in the court proceeding and produces copies of any requested documents before trial. This process is regulated by the rules of court, which put each party under an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this step is to encourage the settlement of court proceedings and to prevent a party from springing new evidence on the other party at trial. by a partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant." was discovered after the last order was made.

Section 14 of the Guidelines says what a "change in circumstances" means:

For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:
(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;
(b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and
(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act ...

Under s. 148(3), the court may set aside an agreement on child support and make an order for child support in its place "if the court would make a different order" than what the agreement provides.

Financial statements

When an application to vary a child support order is brought, one or both parties may have to produce their financial information. This information is almost always given in a Financial Statement, which is Form F8 in the Supreme Court and Form 4 in the Provincial Court:

  • The payor must produce a financial statement dealing with his or her income if the payor is paying child support according to the tables.
  • Both parties must produce financial statements dealing with income if custody is shared or split.
  • Both parties must produce complete financial statements covering income, expenses, assets and liabilities if there is a claim about the children's special expenses, a claim for undue hardship, the payor's income is above $150,000 per year, or one or more of the children over the age of majority.

These new financial statements give the court the information it will need to make a new child support order, if it's willing to vary the original order. Links to and examples of Supreme Court forms are available in Supreme Court Forms & Examples. For Provincial Court forms see Provincial Court Forms & Examples.

Statutory provisions

These are the primary sections of the Family Law Act dealing with varying orders and setting aside agreements for child support:

  • s. 1: definitions
  • s. 146: more definitions
  • s. 148: agreements for child support
  • s. 149: orders for child support
  • s. 150: calculating the amount of child support
  • s. 152: varying orders for child support
  • s. 173: child support has priority over spousal support

Orders made before 1 May 1997

The fact that an order or agreement was made before the Child Support Guidelines came into effect does not mean that a court must change the order or agreement to comply with the Guidelines. Although s. 17(6.1) of the Divorce Act requires the court to make an order that complies with the Guidelines, this rule does not apply to agreements and orders made before 1 May 1997. Don't be discouraged by this, however, as the court still retains the discretion to apply the Guidelines and generally will.

If the difference between the old order and the order you seek is substantial, which it often will be, and the application is for an increased amount of child support, the court will likely be more willing to apply the Guidelines, as a higher amount of support is presumed to be in the best interests of children.

Orders made outside British Columbia

It's rarely easy to change an order made outside of British Columbia because of the respect our courts must give to the authority and jurisdiction of the court that made the original order. (There are a bunch of other reasons why it can be hard to change an order made outside of British Columbia, but that's the meat of it.) The process that will apply depends entirely on whether the original order was made under the federal Divorce Act or under the family law legislationAn act; a statute; a written law made by a government. See "regulations." of the place whose courts made the original order.

Divorce Act orders

Orders that were made elsewhere in Canada under the Divorce Act can be changed here under s. 5 of the act, as long as both parties live in British Columbia. Where one party still lives in the province whose courts made the original order, a person living here can apply to change the original order using a cumbersome, time-consuming process described in ss. 18, 19 and 20 of the act:

  1. the applicant applies here for a "provisional" order changing the original order,
  2. the court sends the provisional order to the place that made the original order,
  3. on notice to the other party, the original court holds a hearing to "confirm" the provisional order, and
  4. if the provisional order is confirmed, the original order is varied, and if it is not confirmed, the original order remains unchanged.

This process requires two hearings, one here in British Columbia for the provisional order and a second in the original court to confirm that order. The court in the other province may or may not confirm the provisional order, and may choose to send the order back here for more information. Until the provisional order is confirmed, the provisional order has no effect and the original order will continue to be the operative order.

Orders and agreements made under other laws

Orders and agreements that were made elsewhere in Canada under provincial family law legislation or were made in certain countries other than Canada, can be changed by someone living in British Columbia using the provincial Interjurisdictional Support Orders Act. Governments that have agreed to follow this process under the Interjurisdictional Support Orders Act are called reciprocating jurisdictions.

The countries that will cooperate with a proceedingIn law, the whole of the conduct of a court proceeding, from beginning to end, and the steps in between; may also be used to refer to a specific hearing or trial. See "action." under the Interjurisdictional Support Orders Act are: South Africa, Zimbabwe, Austria, the Czech Republic, Germany, Gibraltar, Norway, the Slovak Republic, the United Kingdom, the United States of America and its protectorates, the Special Administrative Region of Hong Kong, Singapore, Australia, Fiji, Papua New Guinea, New Zealand, and Barbados and its dependencies.

The process under this act is as follows:

  1. the person asking to change the order or agreement, the applicant, completes a bunch of forms provided by the provincial Reciprocals Office,
  2. our reciprocals office sends the forms to the court that made the original order or the court of the place where the agreement was made, and
  3. on notice of the other party, the original court holds a hearing on the applicant's application and may make an order varying the original order or agreement.

Under this process, there is only one hearing and the hearing is heard by the court that made the original order. The court in the reciprocating jurisdiction may or may not make the order that the applicant wants and may send the application back to British Columbia for more information. The original order or agreement will continue in effect until the court in the reciprocating jurisdiction varies it.

This new process is intended to simplify things by having just the one hearing. To do that, however, the process relies very heavily on paperwork and the officials of our government and the government of the reciprocating jurisdiction. As a result, applications under the Interjurisdictional Support Orders Act can take a long time to process.

Contact details for the British Columbia Reciprocals Office, along with all of the forms required by the Interjurisdictional Support Orders Act can be found at www.isoforms.bc.ca.

To vary an order of a country that does not participate in the Interjurisdictional Support Orders Act process, you will have to apply to vary the order in that country.

Retroactive child support

Someone making a claim for retroactive child support is asking for an order that is to work beginning at some date in the past, before the claim was made or heard. Typically, someone receiving child support will ask for an increase in the amount of support payable dating back to when the payor's income went up. If the claim is successful, the payor will be obliged to start making payments in the amount of the new order, plus a lump sum representing the difference between the support that was paid and the support that ought to have been paid. This can sometimes be a significant financial hardship, particularly where the period of retroactive effect is long.

The trend in the recent case lawThe law as is established and developed by the decisions made in each court proceeding. See "common law." on this subject has been to impose an ongoing duty on payors to disclose their income, whether they are asked for this information or not, and the courts have been increasingly willing to subject payors to retroactive orders for child support.

The basic law: L.S. v. E.P.

The case of L.S. v. E.P., 1999 BCCA 393, a 1999 decisionIn law, a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a judgment; the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as his or her findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," and "findings of fact." of our Court of AppealThe highest level of court in this province, having the jurisdiction to review decisions of the Supreme Court, all provincial lower courts and certain tribunals. See "appeal.", used to be the most important case on this issue in British Columbia, and still is the most important case for orders made under the Family Law Act. In this caseIn law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent.", the court set out the factors that should be considered in deciding whether there should or should not be a retroactive order for support:

"A reviewIn law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support." of the case law reveals that there are a number of factors which have been regarded as significant in determining whether to order or not to order retroactive child maintenanceIn family law, an antiquated term referring to child support and spousal support. See "child support" and "spousal support.". Factors militating in favour of ordering retroactive maintenance include:
(1) the need on the part of the child and a corresponding ability to pay on the part of the non-custodial parentIn family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "natural parent" and "stepparent.";
(2) some blameworthy conduct on the part of the non-custodial parent such as incomplete or misleading financial disclosure at the time of the original order;
(3) necessity on the part of the custodial parent to encroach on his or her capital or incur debtA sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed. to meet child rearing expenses;
(4) an excuse for a delay in bringing the application where the delay is significant; and,
(5) notice to the non-custodial parent of an intention to pursue maintenance followed by negotiations to that end.
"Factors which have militated against ordering retroactive maintenance include:
(1) the order would cause an unreasonable or unfair burden to the non-custodial parent, especially to the extent that such a burden would interfere with ongoing support obligations;
(2) the only purpose of the award would be to redistribute capital or award spousal support in the guise of child support; and,
(3) a significant, unexplained delay in bringing the applicationA request to the court that it make an order for a specific remedy or relief usually on an interim or temporary basis, also called a "chambers application" or a "motion." See also "interim application" and "relief."."

When hearing an application for retroactive child support, the court would apply these factors in deciding whether a retroactive award was warranted and, if so, how much the award should be for and when the retroactive effect of the order should begin.

A change in the law: D.B.S. v. S.R.G.

In July 2006, the Supreme Court of CanadaThe highest level of court in Canada. This court hears appeals from the decisions of the Federal Court of Appeal and the provincial courts of appeal, including the Court of Appeal for British Columbia. There is no court to appeal to beyond this court. See "Court of Appeal" and "Supreme Court." released its judgment in four related cases, D.B.S. v. S.R.G., L.J.W. v. T.A.R., Henry v. Henry and Hiemstra v. Hiemstra, [2006] 2 SCR 231 and significantly clarified the law on retroactive child support. Where it changed the law, the changes weren't all that far from our Court of Appeal's decision in L.S. v. E.P. These cases are referred to collectively as just D.B.S. v. S.R.G., the initials of the lead case.

The logic underlying the court's decision is this:

Before the Child Support Guidelines came into effect, child support was determined using budgets and a means and needs analysis looking at the means of the parents and the real or expected needs of the children. After the Guidelines came into effect on 1 May 1997, child support was expressly linked to the income of the payor, and the payor's duty became to pay support at the amount required for his or her income, using the tables attached to the Guidelines rather than budgets and the needs-and-means analysis. As a result, the court held that a duty to pay child support — whether under a separation agreementA contract intended to resolve all or some of the issues outstanding following the breakdown of a relationship and intended to guide the parties in their dealings with one another thereafter. A typical separation agreement is signed following a settlement reached through negotiations and deals with issues including guardianship, parenting arrangements, contact, support, the division of property and the division of debt. See "family law agreements." or a court order — is never final and absolute. No orders or agreements are final on the subject of support, and both parents have the obligationA duty, whether contractual, moral or legal in origin, to do or not do something. See "duty." of ensuring that the right amount of child support is being paid on an ongoing basis.

The following is a summary of the important points in this decision.

The rationale for retroactive support

  • Both parents have a duty "to ensure that their children are receiving a proper amount of support."
  • "While the paying parent does not shoulder the burden of automatically adjusting payments" when his or her income increases, "this does not mean that (s)he will satisfy his/her child support obligation by doing nothing."
  • If the payor's income increases and child support does not, "there will remain an unfulfilled obligation" that could warrant a retroactive award of support.

When retroactive child support should be ordered

When there is an existing order
  • Child support orders "must be considered presumptively valid."
  • "Where the situations of the parents have changed materially since the original order was handed down, that original order may not be as helpful as it once was in defining the parents' obligations."
  • An obligation to pay the proper amount of support is "independent of any court order that may have been previously awarded." Where parents fail to adjust the amount of support payable, "a court may order an award that recognizes and corrects this failure."
When there is an existing agreement
  • "A payor parent who adheres to a separation agreement that has not been endorsed by a court should not have the same expectation that (s)he is fulfilling his/her legal obligations as does a parent acting pursuant to a court order."
  • "Agreements reached by the parents should be given considerable weight."
  • "Where circumstances have changed," such that the "actual support obligations of the payor have not been met, courts may order a retroactive award."
When there is no order or agreement
  • There is "no restriction" as to "the date from which the court may order that the award take effect."
  • "Courts will have the power to order original retroactive child support awards in appropriate circumstances."

Factors in making retroactive child support awards

  • The child must be eligible to receive support when the application for retroactive support is made; "child support is for children of the marriage, not for adults who used to have that status."
  • The court has the discretion to award or not award retroactive support, but retroactive awards "need not be seen as exceptional."
  • Retroactive child support should not be awarded if the child would not actually benefit from the award of if the award would cause hardship to the payor.
  • "A court should strive for a holistic view of the matter and decide each case on the basis of its particular facts."
  • The recipient's delay in seeking an increase in support will not favour a retroactive award where the recipient "knew higher support payments were warranted, but decided arbitrarily not to apply."
  • The recipient's delay will not be considered if the recipient feared the payor's reaction or lacked "the financial or emotional means to bring an application, or was given inadequate legal advice."
  • "Courts should not hesitate to take into account a payor's blameworthy conduct," and courts should "take an expansive view of what constitutes blameworthy conduct."
  • Blameworthy conduct is "anything that privileges the payor parent's interests over his/her children's right to an appropriate amount of support," such as hiding income increases or intimidating a recipient from seeking an increase in support.

How far back child support awards should be retroactive

  • The date of "effective notice" of the recipient's intention to seek an increase should be the furthest back a retroactive award should go.
  • "Effective notice" doesn't mean the date of applying to court, but the date of notice of "any intention by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated" was given.
  • Except where there is some blameworthy conduct on the part of the payor, it will "usually be inappropriate" to go further back in time than three years from the date of the hearing.
  • Where there is blameworthy conduct, "the presumptive date of retroactivity" will be the time the payor's "circumstances changed materially."

How much retroactive child support should be ordered

  • Retroactive awards must ensure that the amount "fits the circumstances."
  • "Blind adherence to the amounts set out in the applicable Tables is not required — nor is it recommended."
  • "It will be easier to show that a retroactive award causes undue hardship" than it is to show that a normal child support order causes undue hardship.
  • A court "should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case."
  • In other words, retroactive support may be awarded whenever a payor is paying less than the Child Support Guidelines requires, if his or financial circumstances change following the making of an order or agreement dealing with child support. In making such an order, the court must consider:
    1. any excuse for the recipient’s delay in seeking an increase in support,
    2. any blameworthy conduct on the party of the payor,
    3. the circumstances of the child, and,
    4. any hardship that a retroactive award would cause to the payor.
  • If a retroactive award is made, the award should be made retroactive to the date notice is given of the recipient's intention to seek an increase in the amount of support, but to a limit of three years. Where the payor’s conduct is blameworthy, then the support should be retroactive to the date of the change in the payor’s financial circumstances, and may be retroactive beyond the three-year mark.

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