137
edits
Difference between revisions of "Changing Family Law Orders, Awards and Agreements Involving Child Support"
From Clicklaw Wikibooks
Changing Family Law Orders, Awards and Agreements Involving Child Support (view source)
Revision as of 21:33, 17 July 2017
, 21:33, 17 July 2017no edit summary
(No change) |
|||
| Line 5: | Line 5: | ||
|resourcetype = <br/> a fact sheet on | |resourcetype = <br/> a fact sheet on | ||
|link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/changingFinalOrder.php when you can change <br/>a final order] | |link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/changingFinalOrder.php when you can change <br/>a final order] | ||
}}As with all arrangements relating to children, there is no such thing as an absolutely final order or agreement for child support. It is always open to the court to change an order or agreement for child support, provided that the parties' circumstances, or the circumstances of the parties' children, have changed. | }}As with all arrangements relating to children, there is no such thing as an absolutely final order or agreement for child support. It is always open to the court to change an order or agreement for child support, provided that the parties' circumstances, or the circumstances of the parties' children, have changed. Changing an order is called ''varying'' the order. | ||
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. | 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. | ||
| Line 15: | Line 15: | ||
Under s. 5 of the ''Divorce Act'', the Supreme Court has the jurisdiction to vary an order for child support as long as at least one of the spouses is normally living in the province when the court proceeding to vary the order is started, or if both parties agree, no matter which province's courts made the original order. | Under s. 5 of the ''Divorce Act'', the Supreme Court has the jurisdiction to vary an order for child support as long as at least one of the spouses is normally living in the province when the court proceeding to vary the order is started, or if both parties agree, 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'' gives the court the authority to change, cancel, or suspend orders for support made under that Act. Section 17 says in part: | ||
<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> | <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> | ||
| Line 34: | Line 34: | ||
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. | ||
Section 14 of the Guidelines defines a | Section 14 of the Guidelines defines a change in circumstances as follows: | ||
<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> | ||
| Line 43: | Line 43: | ||
===Financial statements=== | ===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 or Form 4 in the Provincial Court | 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 or Form 4 in the Provincial Court. Like affidavits, it must be sworn before a notary or a lawyer or a commissioner for taking affidavits. If an application to vary a child support order is brought: | ||
*The payor must produce a financial statement dealing with | *The payor must produce a financial statement dealing with their 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 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, or a claim for undue hardship, or the payor's income is above $150,000 per year, or one or more of the children are over the age of majority. | *Both parties must produce complete financial statements covering income, expenses, assets and liabilities if there is a claim about the children's special expenses, or a claim for undue hardship, or the payor's income is above $150,000 per year, or one or more of the children are over the age of majority. | ||
| Line 65: | Line 65: | ||
In British Columbia, the Federal Child Support Guidelines are adopted by regulation and the ''[[Family Law Act]]'' provides for variation of child support in virtually the same way as the ''[[Divorce Act]]'. | In British Columbia, the Federal Child Support Guidelines are adopted by regulation and the ''[[Family Law Act]]'' provides for variation of child support in virtually the same way as the ''[[Divorce Act]]''. | ||
Under s. 148(3), the court may set aside an agreement with respect to 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. | Under s. 148(3), the court may set aside an agreement with respect to 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. | ||
| Line 99: | Line 99: | ||
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 where the original order was made, 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: | 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 where the original order was made, 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: | ||
# | #The applicant applies here for a ''provisional'' order changing the original order. | ||
# | #The court sends the provisional order to the place that made the original order | ||
# | #On notice to the other party, the original court holds a hearing to "confirm" the provisional order. | ||
# | #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 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 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. | This process requires two hearings, one 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 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. | ||
| Line 114: | Line 114: | ||
The countries that will cooperate with a proceeding under the ''Interjurisdictional Support Orders Act'' are: South Africa, Zimbabwe, Austria, the Czech Republic, Germany, Gibraltar, Norway, the Slovak Republic, Swiss Confederation, Northern Ireland, the United Kingdom, the United States of America and its protectorates, Hong Kong, Singapore, Australia, Fiji, Papua New Guinea, New Zealand, and Barbados and its dependencies. | The countries that will cooperate with a proceeding under the ''Interjurisdictional Support Orders Act'' are: South Africa, Zimbabwe, Austria, the Czech Republic, Germany, Gibraltar, Norway, the Slovak Republic, Swiss Confederation, Northern Ireland, the United Kingdom, the United States of America and its protectorates, Hong Kong, Singapore, Australia, Fiji, Papua New Guinea, New Zealand, and Barbados and its dependencies. | ||
The process under this | The process under this ''Act'' is as follows: | ||
# | #The person asking to change the order or agreement, the ''applicant'', completes forms provided by the provincial [http://www.isoforms.bc.ca Reciprocals Office]. | ||
# | #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. | ||
# | #On notice to 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. | 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. | ||
| Line 132: | Line 132: | ||
Someone making a claim for ''retroactive'' child support is asking for an order that is to take effect retroactively, i.e. 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 retroactivity is long. | Someone making a claim for ''retroactive'' child support is asking for an order that is to take effect retroactively, i.e. 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 retroactivity is long. | ||
The trend in the recent case 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 | The trend in the recent case 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. The courts have been increasingly willing to subject payors to retroactive orders for child support. | ||
===The basic law: ''L.S. v. E.P.''=== | ===The basic law: ''L.S. v. E.P.''=== | ||
| Line 157: | Line 157: | ||
The logic underlying the [http://canlii.ca/t/1p0tv court's decision] is this: | The logic underlying the [http://canlii.ca/t/1p0tv 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 | 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 their 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 agreement 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 obligation 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 following is a summary of the important points in this decision. | ||
| Line 210: | Line 210: | ||
*"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. | *"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." | *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 their financial circumstances change following the making of an order or agreement dealing with child support. In making such an order, the court must consider: | ||
* | *any excuse for the recipient’s delay in seeking an increase in support, | ||
* | *any blameworthy conduct on the party of the payor, | ||
* | *the circumstances of the child, and, | ||
*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. | |||
<!---HIDDEN | <!---HIDDEN | ||
==Further Reading in this Chapter== | ==Further Reading in this Chapter== | ||
