M. Variation of Child Support Orders

Author:Julien D. Payne - Marilyn A. Payne
Pages:444-460
 
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Page 444

See note 310

Pursuant to section 17(4) of the Divorce Act and section 14 of the Federal Child Support Guidelines, a court may vary an order for child support in any one of the following circumstances:

(a) an order providing the applicable table amount of child support is variable on proof of any change of circumstances that would result in a different disposition;

(b) an order that does not include any table amount of child support is variable on proof of any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support;

(c) any order granted before the implementation of the Federal Child Support Guidelines on 1 May 1997 may be varied in light of their implementation.

A court has jurisdiction to hear a variation application even when the subject order is under appeal.311

1) Variation of Amount of Child Support Made under Applicable Table

Pursuant to section 17(4) of the Divorce Act and section 14(a) of the Federal Child Support Guidelines, a court may vary a child support order whenever the

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amount of child support was determined in accordance with the applicable provincial or territorial table and any change has occurred that would result in a different child support order. Any change that triggers a different order, whether it is a change in form, in substance, or in dollar amounts, is sufficient justification for a variation application.312Such a change will occur when the obligor’s annual income and consequential capacity to pay child support has increased313or has deteriorated for reasons beyond his or her control.314An obligor who seeks to retroactively and prospectively reduce the amount of child support payable must provide reliable and credible evidence that his annual income is less than the amount previously attributed to him.315The basic amount of child support payable under the applicable provincial or territorial table is unaffected by a reduction in the payee’s income, unless such reduction triggers a successful claim of undue hardship under section 10 of the Federal Child Support Guidelines.316The judicial jurisdiction to vary an order for child support based on a provincial or territorial table is not confined to circumstances where the obligor’s income has increased or decreased. For example,

· a complementary provision could be included with respect to newly encountered special or extraordinary expenses; or

· a reconstitution of either household might justify a claim of undue hardship under subsections 10(1) and 10(3) of the Guidelines; or

· the residence of the obligor might change so as to trigger the application of a different provincial or territorial table under section 3(3)(a) of the Guidelines; or

· the accumulation of arrears might warrant the variation of an order for periodic support into an order for lump sum support in accordance with section 11 of the Guidelines; or

· the implementation of revised table amounts of child support may necessitate variation of the amount previously ordered.

Section 14(a) of the Federal Child Support Guidelines deems that there is a change in circumstances for the purposes of section 17(4) of the Divorce Act if section 9 of the Guidelines is triggered.317

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2) Variation Where Amount of Child Support Not under Provincial or Territorial Table

Variation of an order for child support under section 14(b) of the Federal Child Support Guidelines, where the amount of child support was not determined under a provincial or territorial table, may be granted when there has been a change in the condition, means, needs, or other circumstances of either spouse or former spouse or a change in the condition, means, needs, or other circumstances of any child who is entitled to support.318The terms "condition," "means," "needs," and "other circumstances" of either former spouse provide an extremely wide range of relevant considerations that leave the court with an extremely broad discretionary jurisdiction to vary, rescind, or suspend a support order.319In determining the obligor’s available means, the nature and source of those means (whether salary, pension, other income, or capital) are not material.320Income may be imputed to a spouse in the context of an application to vary child support for the purpose of determining whether a material change of circumstances has occurred within the meaning of section 14(b) of the Guidelines.321A material change has been defined by the Supreme Court of Canada in Willick v Willick322as being a change of such magnitude that, if the court had known of the changed circumstances at the time of the original order, it is likely that the order would have been made on different terms.323The change must be significant and long lasting.324It must also be involuntary; a self-induced change of circumstances will not suffice.325A parent has a continuing obligation to support his or her children in spite of temporary unemployment,326or a fluctuating income; some degree of budgeting may be required.327If the change was known at the relevant time, it cannot be relied

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on as the basis for variation.328Subject to the express provisions of section 14 of the Federal Child Support Guidelines, the principles of Willick v Willick continue to apply to the variation of child support orders under the Federal Child Support Guidelines.329An obligor cannot reduce an existing child support obligation by a self-imposed reduction of income.330It may be otherwise if an obligor’s change of employment that resulted in a reduced income was not made for selfish or illogical reasons and could prove sensible in the longer term.331Parents who are subject to support obligations are entitled to make decisions in relation to their careers so long as the decisions are reasonable at the time having regard to all the circumstances. Those circumstances include the age, education, experience, skills, historical earning capacity and health of the payor, the standard of living experienced during marriage, the availability of work, the payor’s freedom to relocate, the reasonableness of the career aspirations and of the motives behind any change, as well as any other obligations of the payor.3323) Variation of Orders Predating Implementation of Guidelines333Appellate rulings in Canada are divided on the question whether the implementation of the Federal Child Support Guidelines on 1 May 1997 compels a court to vary a pre-Guidelines agreement or order for child support or whether a residual discretion vests in the court to leave the order unchanged so as to retain the income tax inclusion and deductibility rules that continue to apply to pre-Guidelines agreements and orders.334

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4) Remission of Arrears

In Earle v Earle,335Martinson J, of the Supreme Court of British Columbia, set out the following propositions with respect to applications to reduce or cancel child support arrears:

Basic Principles

a. There is a heavy duty on the person asking for a reduction or a cancellation of arrears to show that there has been a significant and long lasting change in circumstances. Arrears will not be reduced or cancelled unless it is grossly unfair not to do so.

b. If arrears are not reduced or cancelled, the court can order a payment plan over time if convinced the arrears cannot be paid right away.

Examples

a. Arrears will only be cancelled if the person is unable to pay now and will

be unable to pay in the future.

b. A reduction or a cancellation requires detailed and full financial disclosure, under oath (usually in the form of an affidavit) that at the time the payments were to be made:

i. the change was significant and long lasting and

ii. the change was real and not one of choice and

iii. every effort was made to earn money (or more money) during the time in question, and those efforts were not successful.

c. Responsibility for a second family cannot relieve the parent of his or her legal obligation to support the first family.

d. Delay in enforcement is generally not a legal basis to cancel or reduce child support arrears.336e. Judges will not cancel arrears because the other party gets a lot of money at once. Otherwise, people would be encouraged to not pay maintenance and be rewarded for not paying maintenance.

f. Judges will not cancel arrears because the children were looked after in spite of the non-payment.

g. Nor will judges cancel arrears because the children no longer need the money. The children should be compensated for what they missed.

h. An agreement between parents that the maintenance for the children does not have to be paid will not be considered.337

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i. Lack of access between a parent and child is not a legal reason to reduce or cancel arrears.

j. Judges will not reduce or cancel arrears because other money has been spent to buy things for the children.

k. The fact that a person did not have legal advice when the order was made or during the time when the arrears added up, is not, by itself, a reason to reduce or cancel arrears.

In Sewell v Grant,338Gower J, of the Yukon Territory Supreme Court, questioned the validity of several of the principles set out in Earle v Earle, above, in concluding that the court has no discretion to refuse to reduce arrears of child support where the payor’s income is less than that previously judicially imputed to him. And in Turecki v Turecki,339judicial remission of child support arrears was deemed appropriate because the custodial parent deliberately refrained from enforcing court-ordered child support payments so as to avoid disclosing her whereabouts, thereby denying the non-custodial parent court-ordered access to which both he and the child were entitled. The British Columbia Court of Appeal...

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