Difference between revisions of "Changing Orders in Family Matters"
From Clicklaw Wikibooks
Changing Orders in Family Matters (view source)
Revision as of 04:39, 5 March 2013
, 04:39, 5 March 2013→Child Support
| Line 133: | Line 133: | ||
==Child Support== | ==Child Support== | ||
Orders about child support mostly need to change because the payor's income has gone up or down, because the children have grown up and are no longer entitled to benefit from the payment of child support or because one or more of the children have left the recipient's home to live with the payor. | |||
===''Divorce Act'' Orders=== | ===''Divorce Act'' Orders=== | ||
Under s. 5 of the Divorce Act, the Supreme Court has the jurisdiction to vary an order for child support as long as either spouse was ordinarily resident in the province at the time the action 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 act | Under s. 5 of the ''Divorce Act'', the Supreme Court has the jurisdiction to vary an order for child support as long as either spouse was ordinarily resident in the province at the time the action 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 act. | ||
Section 17 of the Divorce Act says this: | Section 17 of the Divorce Act 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. | <blockquote><tt>(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.</tt></blockquote> | ||
(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines. | <blockquote><tt>(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.</tt></blockquote> | ||
(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 | <blockquote><tt>(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</tt></blockquote> | ||
(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and | <blockquote><blockquote><tt>(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and</tt></blockquote></blockquote> | ||
(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions. | <blockquote><blockquote><tt>(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.</tt></blockquote></blockquote> | ||
(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. | <blockquote><tt>(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.</tt></blockquote> | ||
(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. | <blockquote><tt>(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.</tt></blockquote> | ||
This all boils down to these principles: | 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 occured since the order was made; | #a court can make an order changing a previous child support order if a change in circumstances has occured since the order was made; | ||
any new order for child support must be made according to the Child Support Guidelines; | #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 Guidelines if a previous order or agreement has made special provisions for the care of the child which would make an order under the Guidelines inappropriate; and, | #the court may make an order for support different from the Guidelines if a previous order or agreement has made special provisions for the care of the child which would make an order under the Guidelines inappropriate; and, | ||
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. | #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 applicant 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. | Before the Child Support Guidelines came into effect, an applicant 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. | ||
| Line 219: | Line 223: | ||
s. 91: who may apply for a child support order | s. 91: who may apply for a child support order | ||
s. 96: variation proceedings | s. 96: variation proceedings | ||
==Spousal Support== | ==Spousal Support== | ||
