M. Variation of Orders Predating Implementation of Guidelines

Author:Julien D. Payne - Marilyn A. Payne
Pages:500-502
 
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Pursuant to section 17(1) and 17(4) of the Divorce Act and section 14(c) of the Federal Child Support Guidelines, any order for child support that was made before May 1, 1997 may be the subject of an application to vary. The right to seek variation was necessitated by the implementation of the Federal Child Support Guidelines on May 1, 1997 which were accompanied by amendments to the Income Tax Act whereby any orders or agreements respecting child support made on or after May 1, 1997 are premised on a tax-free system.

Appellate courts in British Columbia127Alberta,128and New Brunswick129have determined that implementation of the Federal Child Support Guidelines on May 1, 1997 does not automatically warrant variation of a child support order under section 17 of the Divorce Act and section 14(c) of the Guidelines, although such variation may be warranted where there has been a material change of circumstances that was not in the contemplation of the parties at the time of the order.

In contrast, appellate courts in Nova Scotia,130Ontario,131and Saskatchewan132have determined that, subject to the provisions of sections 15.1(5) and 17(6.2) of the Divorce Act

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which relate to agreements or orders which include special provisions that directly or indirectly benefit a child and thereby render the application of the Federal Child Support Guidelines inequitable, a court has no residual discretion to deviate from the Guidelines once a material change has occurred, and such a change will exist where the agreement or order pre-dated the implementation of the Federal Child Support Guidelines and the amendments to the Income Tax Act on May 1, 1997.

As of November 1, 2000, section 14 of the Federal Child Support Guidelines was amended with the objective of making it clear that the implementation of the Federal Child Support Guidelines on May 1, 1997 itself constitutes a ground on which a court shall vary a pre-Guidelines child support order to conform to the Federal Child Support Guidelines, except in circumstances falling within the ambit of sections 17(6.2) to (6.5) of the Divorce Act.

However, no amendment was made to sections 15.1 and 17 of the Divorce Act. The question remains, therefore, whether the aforementioned conflict of appellate rulings across Canada has been resolved by the implementation of the November 2000 amendment to section 14 of the Federal Child Support Guidelines. In Danchuk v. Danchuk,133Saunders J.A., of the...

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