V. Variation of Consent Orders

Author:Julien D. Payne - Marilyn A. Payne

Page 534

See note 363

A consent order constitutes a child support order within the meaning of sections 2(1) and 15.1(1) of the Divorce Act and is consequently variable pursuant to section 17(1)(a) of the Divorce Act in the event of a material change of circumstances.364In determining whether the conditions for variation exist, the court must be satisfied that the change of circumstances is such that, if known at the time, would likely have resulted in different terms.365Although consent orders are not lightly disturbed, courts have an overriding discretion when dealing with child support to vary such orders.366

A consent order granted prior to the implementation of the Federal Child Support Guidelines on May 1, 1997 may be varied in light of a subsequent change of circumstances, notwithstanding the custodial parent’s purported waiver of child support for the foreseeable future.367A consent order that provides higher child support than that payable under the Guidelines does not foreclose a subsequent application to reduce the amount where the obligor’s ability to pay has been significantly reduced for reasons beyond his or her control.368Courts are loathe to interfere with consent orders that embody a comprehensive settlement of all outstanding issues, including child support, because what is given up or accepted in one aspect has an inevitable impact on what is given up or accepted in another. A court may, nevertheless, vary the child support arrangements where the consent order has become unreasonable in light of the obligor’s reduced income and a judicial refusal to vary the amount of child support payable would be grossly unfair.369A consent order for child support may be set aside because of a parent’s material non-disclosure of his or her financial circumstances, in which event retroactive and ongoing child support may be fixed on the basis of income imputed to that parent for unreasonable business expenses and income-splitting with a new spouse.370On an application under the Family Relations Act (B.C.) to vary a consent order for child support in an amount higher than that payable under the Federal Child Support Guidelines, the applicant must prove a material change in circumstances that warrants variation of the order. A consent order, like any other order, once made is assumed to be valid and correct unless overturned on appeal. If the payor’s employment income was not used as the foun-

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dation for the consent order...

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