Changing Orders in Family Matters: Difference between revisions

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.  

#a court can make an order changing a previous child support order if a change in circumstances has occured since the order was made;

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 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 ...

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, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

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 support

s. 17: variation proceedings

===Family Law Act Orders===

Section 20 of the Family Relations Act gives a court the authority to cancel, vary or suspend an order for child support where "circumstances have changed" since the last order. Section 96 of the act deals with the variation of child support orders and provides, in part, as follows:

(1) If an application is made to vary or rescind a maintenance order not described in subsection (1.1), the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.

(a) be satisfied that a change in circumstances as provided for under the child support guidelines has occurred since the making or last variation of the maintenance order, and

(b) if satisfied that a change in circumstances as provided for under the child support guidelines has occurred, apply only the child support guidelines to determine the change of the amount of the maintenance obligation under the order.

(1.2) Despite subsection (1.1)(b), a court may vary a maintenance order, as defined in section 87 respecting the obligation under section 88 to support and maintain children, to an amount that differs from the amount the court ascertains using the child support guidelines, if the court is satisfied that

(a) provisions in an order, a judgment or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit the child, or that special provisions have otherwise been made for the benefit of the child, and

(b) the application of the child support guidelines would be inequitable in the circumstances of the provisions to which paragraph (a) refers.

any change in a child support order must take into account the means and needs of the parties;

a court can only vary an order if there has been a change of circumstances, as defined by s. 14 of the Child Support Guidelines, since the last order; 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 unfair.

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, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

These are the primary sections of the Family Relations Act dealing with varying a child support order: