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Difference between revisions of "Changing Family Law Orders, Awards and Agreements Involving Child Support"
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Changing Family Law Orders, Awards and Agreements Involving Child Support (view source)
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* changing orders that were made outside British Columbia. | * changing orders that were made outside British Columbia. | ||
This section also discusses claims for retroactive support and the important case of [http://canlii.ca/t/1p0tv D.B.S. v | This section also discusses claims for retroactive support and the important case of [http://canlii.ca/t/1p0tv D.B.S. v S.R.G.], a 2006 decision of the Supreme Court of Canada. | ||
==Orders made under the ''Divorce Act''== | ==Orders made under the ''Divorce Act''== | ||
Under section 5 of the ''Divorce Act'', the Supreme Court has the jurisdiction to change an order for child support as long as at least one of the spouses | Under section 5 of the ''Divorce Act'', the British Columbia Supreme Court has the jurisdiction to change an order for child support as long as at least one of the spouses was normally living in British Columbia when the court proceeding to change the order was started, or if both parties agree that the court should have jursidiction, no matter which province's court 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. "Changing" an order is called ''varying'' the order. Section 17 says: | Section 17 of the ''Divorce Act'' gives the court the authority to change, cancel, or suspend orders for support made under that act. "Changing" an order is called ''varying'' the order. Section 17 says: | ||
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<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> | <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> | ||
(The "applicable guidelines" means the [[Child Support Guidelines]], a regulation | (The "applicable guidelines" means the [[Child Support Guidelines]], a regulation that describes the rules that the courts must apply when making an order for child support.) | ||
These parts of section 17 all boil down to the following ideas: | These parts of section 17 all boil down to the following ideas: | ||
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<blockquote><tt>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:</tt></blockquote> | <blockquote><tt>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:</tt></blockquote> | ||
<blockquote><blockquote><tt>(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;</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(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;</tt></blockquote></blockquote> | ||
<blockquote><blockquote><tt>(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; | <blockquote><blockquote><tt>(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; ...</tt></blockquote></blockquote> | ||
===Financial statements=== | ===Financial statements=== | ||
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*The payor must produce a financial statement describing their income if the payor is paying child support according to the Guidelines tables. | *The payor must produce a financial statement describing their income if the payor is paying child support according to the Guidelines tables. | ||
*Both parents must produce financial statements describing | *Both parents must produce financial statements describing their income if each parent has the primary residence of one or more of the children or the parents share the children's time equally or near-equally. | ||
*Both parties must produce complete financial statements describing their income, expenses, assets, and liabilities if the application includes a claim about the children's special expenses or extraordinary expenses, a claim for undue hardship, if the payor's income is above $150,000 per year, or if one or more of the children are over the age of majority. | *Both parties must produce complete financial statements describing their income, expenses, assets, and liabilities if the application includes a claim about the children's special expenses or extraordinary expenses, a claim for undue hardship, if the payor's income is above $150,000 per year, or if one or more of the children are over the age of majority. | ||
Financial statements give the court the information it needs to make a new child support order | Financial statements give the court the information it needs to make a new child support order. | ||
===Statutory provisions=== | ===Statutory provisions=== | ||
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<blockquote><blockquote><tt>(c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.</tt></blockquote></blockquote> | ||
The federal [[Child Support Guidelines]] have been adopted for the provincial ''Family Law Act''. As a result, the rules about changing child support orders under the provincial legislation are almost exactly the same as they are under the federal ''[[Divorce Act]], described above. | The federal [[Child Support Guidelines]] have been adopted for the provincial ''Family Law Act''. As a result, the rules about changing child support orders under the provincial legislation are almost exactly the same as they are under the federal ''[[Divorce Act]]'', described above. | ||
===Financial statements=== | ===Financial statements=== | ||
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*The payor must produce a financial statement describing their income if the payor is paying child support according to the Guidelines tables. | *The payor must produce a financial statement describing their income if the payor is paying child support according to the Guidelines tables. | ||
*Both parents must produce financial statements describing | *Both parents must produce financial statements describing their income if each parent has the primary residence of one or more of the children or the parents share the children's time equally or near-equally. | ||
*Both parties must produce complete financial statements describing their income, expenses, assets, and liabilities if the application includes a claim about the children's special expenses or extraordinary expenses, a claim for undue hardship, if the payor's income is above $150,000 per year, or if one or more of the children are over the age of majority. | *Both parties must produce complete financial statements describing their income, expenses, assets, and liabilities if the application includes a claim about the children's special expenses or extraordinary expenses, a claim for undue hardship, if the payor's income is above $150,000 per year, or if one or more of the children are over the age of majority. | ||
Financial statements give the court the information it needs to make a new child support order | Financial statements give the court the information it needs to make a new child support order. | ||
===Statutory provisions=== | ===Statutory provisions=== | ||
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The [[Child Support Guidelines]] came into force on 1 May 1997. Section 14(3) of the Guidelines says that this change in the law allows anyone with a child support order made before 1 May 1997 to apply to change that order. If you have one of these old orders, although it's doubtful that any of these orders are still in effect, you can ask to change the order without having to show that anyone's income has gone up or down, or that the child's special expenses or extraordinary expenses have changed. | The [[Child Support Guidelines]] came into force on 1 May 1997. Section 14(3) of the Guidelines says that this change in the law allows anyone with a child support order made before 1 May 1997 to apply to change that order. If you have one of these old orders, although it's doubtful that any of these orders are still in effect, you can ask to change the order without having to show that anyone's income has gone up or down, or that the child's special expenses or extraordinary expenses have changed. | ||
Orders and agreements made before the Guidelines came into effect are special because the payor could claim a tax deduction for their child support payments, while the recipient had to claim the payments they received as taxable income. Today, orders and agreements about child support have no tax consequences for either the payor or the recipient of support. | Orders and agreements made before the Guidelines came into effect are special because the payor could claim a tax deduction for their child support payments, while the recipient had to claim the payments they received as taxable income. Today, orders and agreements about child support have no income tax consequences for either the payor or the recipient of support. | ||
==Orders made outside British Columbia== | ==Orders made outside British Columbia== | ||
It's not always easy to change an order made outside of British Columbia, mainly because the courts of this province don't have authority over the courts of other provinces, territories and countries. However, both the federal ''[[Divorce Act]]'' and the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'' have special provisions about how orders for child support made elsewhere in Canada can be changed by someone living in British Columbia. The ''Interjurisdictional Support Orders Act'' also talks about how | It's not always easy to change an order made outside of British Columbia, mainly because the courts of this province don't have authority over the courts of other provinces, territories and countries. However, both the federal ''[[Divorce Act]]'' and the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'' have special provisions about how orders for child support made elsewhere in Canada can be changed by someone living in British Columbia. The ''Interjurisdictional Support Orders Act'' also talks about how people who live here can ask to change child support orders made in countries which have agreements with British Columbia. Orders that were made in other countries can only be changed through an application in the court that made the original order. You should speak to a lawyer in that country to get more information about your options. | ||
If you can change an order made outside of British Columbia, the process you'll use depends on whether the original order was made under the federal ''Divorce Act'' or under the legislation of the place whose courts made the original order. The processes are, however, very similar. | If you can change an order made outside of British Columbia, the process you'll use depends on whether the original order was made under the federal ''Divorce Act'' or under the legislation of the place whose courts made the original order. The processes are, however, very similar. | ||
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}}Orders that were made elsewhere in Canada under provincial family law legislation, or were made in certain other countries outside of Canada, can be changed by someone living in British Columbia using the process described in sections 25, 26 and 27 of the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. | }}Orders that were made elsewhere in Canada under provincial family law legislation, or were made in certain other countries outside of Canada, can be changed by someone living in British Columbia using the process described in sections 25, 26 and 27 of the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. | ||
Every province in Canada has its own ''Interjurisdictional Support Orders Act'' and follows the same process. The countries that also follow the ''Interjurisdictional Support Orders Act'' process and have agreed to cooperate applications | Every province in Canada has its own ''Interjurisdictional Support Orders Act'' and follows the same process. The countries that also follow the ''Interjurisdictional Support Orders Act'' process and have agreed to cooperate with applications for changes to child support orders are: | ||
* United States of America — all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa, and the US Virgin Islands | * United States of America — all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa, and the US Virgin Islands | ||
* Pacific Ocean — Australia, Fiji, New Zealand (including the Cook Islands), Papua New Guinea | * Pacific Ocean — Australia, Fiji, New Zealand (including the Cook Islands), and Papua New Guinea | ||
* Europe — Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, United Kingdom of Great Britain and Northern Ireland | * Europe — Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, and United Kingdom of Great Britain and Northern Ireland | ||
* Caribbean — Barbados and its Dependencies | * Caribbean — Barbados and its Dependencies | ||
* Africa — South Africa | * Africa — South Africa and Zimbabwe | ||
* Asia — Hong Kong | * Asia — Hong Kong and Republic of Singapore | ||
See the [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation] for the current list. | See the [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation] for the current list. | ||
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#The court hears the application and may make an order changing the child support order, may ask for more evidence, or may dismiss the application. | #The court hears the application and may make an order changing the child support order, may ask for more evidence, or may dismiss the application. | ||
Under this process, there is only one hearing and the hearing is heard by the court where the other parent lives. | Under this process, there is only one hearing, and the hearing is heard by the court where the other parent lives. | ||
It's important to know that the original order will continue in effect until and unless the court changes the order. | It's important to know that the original order will continue in effect until and unless the court changes the order. | ||
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*Whether the recipient delayed seeking an increase in support when they "knew higher support payments were warranted, but decided arbitrarily not to apply." | *Whether the recipient delayed seeking an increase in support when they "knew higher support payments were warranted, but decided arbitrarily not to apply." | ||
*Whether the recipient delayed seeking an increase in support because they feared the payor's reaction or lacked "the financial or emotional means to bring an application, or were given inadequate legal advice." | *Whether the recipient delayed seeking an increase in support because they feared the payor's reaction or lacked "the financial or emotional means to bring an application, or were given inadequate legal advice." | ||
*Whether the payor | *Whether the payor was acting in a blameworthy manner in avoiding disclosing their income or in discouraging the recipient from seeking an increase in support. | ||
(Blameworthy conduct is "anything that privileges the payor parent's interests over his/her children's right to an appropriate amount of support.") | (Blameworthy conduct is "anything that privileges the payor parent's interests over his/her children's right to an appropriate amount of support.") | ||
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*the child support order must not have been based on undue hardship, self-employment income, imputed income or a pattern of income, as opposed to last year's income, | *the child support order must not have been based on undue hardship, self-employment income, imputed income or a pattern of income, as opposed to last year's income, | ||
*the payor cannot be someone who stands in the place of a parent, like a non-parent guardian, and | *the payor cannot be someone who stands in the place of a parent, like a non-parent guardian, and | ||
*there must not be an application underway that | *there must not be an application underway that might impact the amount of child support being paid. | ||
The program may or may not be able to help if one or more of the children are 19 years old or older, the children's time is shared equally or near-equally between the parties, or if a parent's income is over $150,000 per year. The program will tell you if it can help. | The program may or may not be able to help if one or more of the children are 19 years old or older, the children's time is shared equally or near-equally between the parties, or if a parent's income is over $150,000 per year. The program will tell you if it can help. | ||
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*both parents' incomes are stated in the order or the agreement, and | *both parents' incomes are stated in the order or the agreement, and | ||
*each parent's proportionate | *each parent's proportionate share of the children's special expenses and extraordinary expenses are stated in the order or the agreement. | ||
==Resources and links== | ==Resources and links== | ||
