J. Change of Circumstances; Onus of Proof

Author:Julien D. Payne - Marilyn A. Payne

Page 490

Absent an appeal or proof of a change of circumstances since the previous order was granted, parties cannot revisit issues already litigated.39If a support order was made in ignorance of material facts and on erroneous assumptions of fact, an application to review that order may be entertained, notwithstanding that there has been little, if any, material change in the condition, means, needs, and other circumstances of either former spouse since the making of the order that is sought to be varied.40In Edwards v. Edwards,41a support order had been granted in ignorance of the husband’s true financial circumstances, such ignorance having been induced by the husband. The court held that on the wife’s motion for a new order in substitution for the original order, the court was exercising its inherent jurisdiction as an instrument of justice as distinct from its statutory jurisdiction to vary the order.

Page 491

On a variation application, the burden falls on the applicant to establish on the balance of probabilities that there has been a material change of circumstances within the meaning of section 17 of the Divorce Act and section 14 of the Federal Child Support Guidelines.42

The burden of proof will not be discharged where there is insufficient evidence adduced to establish such a change.43Bald assertions made in an affidavit are insufficient to support a finding of a material change of circumstances. Facts in support of the beliefs or conclusions must be sworn to and presented.44A parent, who seeks to prospectively and retroactively vary an order for child support, assumes the onus of proving a material change of circumstances since the granting of the order. This onus will not be discharged where the applicant fails to provide reliable business records as to income earned. An adverse inference may be drawn against an applicant who regularly receives cash for jobs undertaken and gives a discount for cash payments without proffering any explanation to the court for such discounts.45When the provisions of the Divorce Act and the Federal Child Support Guidelines are read as a whole, it is apparent that a consent order summarily dismissing a claim for child support is not a "child support order" and proof of a change of circumstances is not a prerequisite to a subsequent application for child support, which should be brought under section 15.1 of the Divorce Act rather than by way of a variation application under section 17 of the Divorce Act.46A sufficient change of circumstances to justify variation of a child support order may arise from a change in the parenting arrangement or a change in the payor’s income.47Amendments to the Federal Child Support Guidelines that were implemented on May 1, 2006 and on January 1, 2012 constitute a change in circumstances because they changed the table amounts.48Once a change of circumstances has been found to have occurred, the court must rely on the best current information that it has to determine the amount of support payable.49

Given a change of circumstances since a child support order and extraordinary expenses were originally granted, a chambers judge has no discretion to deviate from the Federal Child Support Guidelines, unless the circumstances fall with sections 17(6.2) to (6.5) of the

Page 492

Divorce Act or the circumstances are such as to trigger a finding of undue hardship under section 10 of the Guidelines.50Absent undue hardship, an obligor’s bankruptcy does not relieve him of his child support obligation.51Nothing in the Federal Child Support Guidelines affects the longstanding legal requirement that a material change of circumstances, which is significant and long lasting, must be established as a condition precedent to the variation of a child...

To continue reading