Variation, Rescission, or Suspension of Child Support Orders

• Jurisdiction: Canada
• Pages: 547-595
• Author: Julien D. Payne,Marilyn A. Payne

547

 

Variation, Rescission, or Suspension of

Child Support Orders

A. RELEVANT STATUTORY AND REGULATORY PROVISIONS

Sections 17(4) and (6.1) of the Divorce Act provide as follows:

Variation, Rescission or Suspension of Orders1

Order for variation, rescission or suspension

17 (1) A court of competent jurisdiction may make an order varying, resc inding or suspending,

prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses. . . .

 As to interjurisdictional support orders, see ss – of the Divorce Act, RSC  (d Supp), c ; see

also ss –. of the Divorce Act whereby the provisions of the Convention of 23 November 2007 on the

International Recovery of Child Support and Other Forms of Family Maintenance ( Hague Child

Support Convention) have the force of law in Canada insofar as they relate to subjects that fall within the

legislative competence of Parliament. As to the implementation of the Convention of 19 October 1996 on

Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsib-

ility and Measures for the Protection of Children, see the Divorce Act, ss –. And see John-Paul E Boyd,

“A Brief Overview of Bill C-, An Act to Amend the Divorce Act and Related Legislation; Part : Amend-

ments Relating to Interjurisdictional Agreements and Treaties” (June ), online: Canadian Research

Institute For Law and the Family

https://afccontario.ca/wp-content/uploads///Boyd-Overview-of-Bill-C-Pt--June-.pdf;

Department of Justice, Canada, “e Divorce Act Changes Explained: Part II,” online: Department of Jus-

tice, Canada www.justice.gc.ca/eng/-df/c-mdf/dace-clde/index.html. e  Hague Child Support

Convention came into force for Canada and applies to the provinces of Manitoba and Ontario on Feb-

ruary , and to British Columbia on  March . It is expected that the Convention will be pro-

gressively implemented in other provinces and territories in Canada: see Department of Justice, Canada,

“Enforcement of Child and Spousal Support Payments between Provinces, Territories and Countries,”

online: www.justice.gc.ca/eng/-df/enforce-execution/enforce-execut.html. See also Ontario Family

Responsibility Oce (FRO) website and the Hague Conference on Private International Law website,

subheading “Child Support,” online: HCCH.net; and see Andina van Isschot & Annick Boulay, “Strength-

ening Family Justice Services: Recent Changes to the Family Orders and Agreements Enforcement

Assistance Act and Canada’s Implementation of the  Hague Child Support Convention,” County of

Carleton Law Association, rd Annual Institute of Family Law,  April , Montebello, Quebec.

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548   , 

Terms and conditions

(3) e court may include in a variation order any provision that under this Act could

have been included in the order in respect of which the variation is sought.

Factors for child support order

(4) B efore the court makes a variation order in respect of a child support order, the court

shall satisfy itself that a change of circumstances as provided for in the applicable guidelines

has occurred since the making of the child support order or the last variation order made in

respect of that order. . . .

Conduct

(6) In making a variation order, the court shall not take into consideration any conduct

that under this Act could not have been considered in making the order in respect of which

the variation order is sought.

Guidelines apply

(6.1) A court making a variation order in respect of a child support order shall do so in

accordance with the applicable guidelines.

Courts may take agreement, etc., into account

(6.2) Notwithstanding subsec tion (6.1), in making a variation order in respect of a child

support order, a court may award an amount that is dierent from the amount that would be

determined in accordance with the applicable guidelines if the court is satised

(a) that special provisions in an order, a judgment or a written agreement respecting the

nancial obligations of the spouses or the division or transfer of their property, directly

or indirectly benet a child, or that special provisions have otherwise been made for the

benet of a child; and

(b) that the application of the applicable guidelines would result in an amount of child sup-

port that is inequitable given those special provisions.

Reasons

(6.3) Where the court awards, pursuant to subsection (6.2), an amount that is dierent

from the amount that would be determined in accordance with the applicable guidelines, the

court shall record its reasons for having done so.

Consent orders

(6.4) Notwithstanding subsection (6.1), a court may award an amount that is dierent

from the amount that would be determined in accordance with the applicable guidelines on

the consent of both spouses if it is satised that reasonable arrangements have been made

for the support of the child to whom the order relates.

Reasonable arrangements

(6.5) For the purposes of subsection (6.4), in determining whether reasonable arrange-

ments have been made for the support of a child, the court shall have regard to the applicable

guidelines. However, the court shall not consider the arrangement to be unreasonable solely

because the amount of support agreed to is not the same as the amount that would otherwise

have been determined in accordance with the applicable guidelines. . . .

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Variation, Rescission, or Suspension of Child S upport Orders 549

Copy of order

(11) Where a court makes a variation order in respect of a support order . . . made by

another court, it shall send a copy of the variation order, certied by a judge or ocer of the

court, to that other court.

Variation order by adavit, etc.

17.1 Where both former spouses are habitually resident in dierent provinces, a court of

competent jurisdiction may, in accordance with any applicable rules of the court, make a

variation order pursuant to subsection 17(1) on the basis of the submissions of the former

spouses, whether presented orally before the court or by means of adavits or any means of

telecommunications, if both former spouses consent thereto.

e provisions of section 17 of the Divorce Act are complemented by section 14 of the

Federal Child Support Guidelines, which provides as follows:

Circumstances for variation

14 For the purposes of subsection 17(4) of the Act, any one2 of the following constitutes a

change of circumstances:

(a) in the case where the amount of child support includes a determination made in accord-

ance with the applicable table, any change in circumstances that would result in a dier-

ent 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 circum-

stances of either spouse or of any child who is entitled to support;

(c) in the case of an order made before 1 May 1997, the coming into force of section 15.1 of

the Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).3

Section 17 of the Divorce Act and section 14 of the Federal Child Support Guidelines codify

the circumstances wherein a court may vary a child support order. e role of the court is

not that of an appellate tribunal; the validity of the existing order is presumed and the court’s

role in a variation proceeding is simply to determine whether there has been a change in

circumstances since the order was granted that warrants its variation according to the afore-

mentioned provisions.4 e judicial assumption that the existing order is correct applies not

only to the amount of child support but also to its duration. If the order has expired, an appli-

cation to continue child support will be treated by analogy to section 17(10) of the Divorce Act,

which deals with the variation of spousal support orders, as an application to vary that falls

subject to section 17 of the Divorce Act and section 14 of the Federal Child Support Guidelines,

and not as an original application for support under section 15.1 of the Divorce Act.5

 Guidelines Amending the Federal Child Support Guidelines, SOR/-, s , amending SOR/-, s .

 Ramachala (Holland) v Holland,  ABQB ; LF v RB,  BCSC ; Van Boekel v Van Boekel,

 ONSC . For a useful discussion of general principles relating to the variation of child support

orders, see Weber v Weber,  ONSC  at paras –.

 Zarins v Cochrane, [] BCJ No  (SC). See Lorne MacLe an, Fraser MacLean, Kaye Booth &

Oliver Spinks, “COVID- and Canadian Spousal and Child Support: ere Is a Light at the End of the

Tunnel but How Long Is the Tunnel?” County of Carleton Law Association, Annual Institute of Family

Law , Ottawa,  March .

 Gervais v Tongue, [] OJ No  (SCJ).

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