Changing Family Law Orders, Awards and Agreements Involving Child Support: Difference between revisions

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, 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, while 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 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 Guidelines came into effect on 1 May 1997, and changing orders that were made in a different place. This page also discusses claims for retroactive support and the important case of ''[http://canlii.ca/t/1p0tv D.B.S. v. S.R.G.]'', [2006] 2 SCR 231.

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 souses is normally living in the province where the court proceeding 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 act. "Changing" an order is called ''varying'' the order. Section 17 says this:

*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.

*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 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 [[Sample Supreme Court Forms (Family Law)]].

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:

*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 [[Sample Supreme Court Forms (Family Law)]]. For Provincial Court forms see the page on [[Sample Provincial Court Forms (Family Law)]].

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 which 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.

In July 2006, the Supreme Court of Canada released its [http://canlii.ca/t/1p0tv 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'', and significantly clarified the law on retroactive child support, and 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 [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 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 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.

*"A court should strive for a holistic view of the matter and decide each case on the basis of its particular" facts.

*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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