Variation, rescission, or suspension of child support orders
| Author | Julien D. Payne; Marilyn A. Payne |
| Pages | 501-550 |
501
CHAPTER 13
VARIATION, RESCISSION, OR SUSPENSION
OF CHILD SUPPORT ORDERS
A. RELEVANT STATUTORY AND REGULATORY PROVISIONS
Sections () and (.) of the Divorce Act provide as follows:
Variation, Rescission or Suspension of Orders
Order for variation, re scission or suspension
. () A court of competent ju risdiction may ma ke an order varyi ng, rescindi ng or sus-
pending, prospect ively or retroactively,
(a) a support order or any provision thereof on application by either or both former
spouses . . . .
Terms and conditions
() e court may include in a var iation order any provision that under this Act could
have been included in the order in respec t of which the variation is sought.
Factors for child support order
() Before the cou rt makes a vari ation order in respect of a child suppor t order, the
court shall s atisfy itsel f that a change of circum stances as provided for i n the applicable
As to interjur isdictional support order s, see ss – of Bill C-, now SC , c and also ss to
. whereby the provisions of t he Hague Convention on the Intern ational Recovery of Child Supp ort
and Other Forms of Family Maint enance, November (entered into force Januar y ), have
the force of law in Canada i n so far as they relate to subjec ts that fall with in the legislative competence
of Parliament. A nd see John-Paul E Boyd, “A Brief Overview of Bil l C-, An Act to Amend the Divorce
Act and Related Legi slation” (June ), Canadian Research In stitute for Law and the Family at Part
Amendments Relatin g to Interjurisdict ional Agreements and Treaties, onl ine: https://prism.ucalgary.ca/
bitstream/ha ndle///Bill_C_Overview_P art_II _-_Jun_ .pdf?sequence=&isAl lowed=y.
For more detailed an alysis, see Canada, D epartment of Justice, Leg islative Background: An a ct to amend
the Divorce Act, the Family Ord ers and Agreements Enforcem ent Act and the Garnishment Att achment
and Pension Diversio n Act and to make consequenti al amendments to another Act (Bil l C-, now SC ,
c ) ( January ), online: ww w.j ust ic e.gc .ca /eng /rp -pr/ fl-lf /fa mi l/c /. htm l.
502 CHILD SUPPORT GUIDELINES IN CANADA, 2020
guidelines has o ccurred since the ma king of the chi ld support order or the last va riation
order made in respect of that order . . . .
Conduct
() In maki ng a variation order, the court shall not ta ke into consideration any conduct
that under this Act cou ld not have been considered in making the order i n respect of which
the variation order is soug ht.
Guidelines apply
(.) A court making a v ariation order in respect of a child support order sha ll do so in
accordance with t he applicable guidelines.
Courts may take agree ment, etc., into account
(.) Notwithsta nding subsect ion (.), in making a variation order in respec t of a
child support order, a court may award a n amount that is different f rom the amount that
would be determined in accorda nce with the applicable guidelines if t he court is satisfied
(a) that special provi sions in an order, a judgment or a written agreement respe cting the
financial obli gations of the spouses or the d ivision or trans fer of their property, dir-
ectly or indire ctly benefit a child, or that special prov isions have otherwise been made
for the benefit of a child; and
(b) that the application of t he applicable guidelines would res ult in an amount of chi ld
support that is i nequitable given those spe cial provisions.
Reasons
(.) Where the court awards, purs uant to subsection (.), an amount that is different
from the amount that would be deter mined in accordance w ith the applicable guideli nes,
the court shal l record its reasons for having done so.
Consent orders
(.) Notwithstanding su bsection (.), a court may award an amou nt that is different
from the amount that would be deter mined in accordance w ith the applicable guideli nes
on the consent of both spouses i f it is satisfied that rea sonable arrangements have been
made for the support of the child to whom t he order relates.
Reasonable arrangements
(.) For the purposes of subsection (.), in determining whether rea sonable arrange-
ments have been made for the support of a child, t he court shall have regard to the applic-
able guidelines. However, the court sha ll not consider the arrangement to be unrea sonable
solely because the amount of suppor t agreed to is not the same as the amount that would
otherwise have been de termined in accordance with the applicable gu idelines . . . .
Copy of order
() Where a court ma kes a variation order in respec t of a support order . . . made by
another court, it sha ll send a copy of the variation order, certified by a judge or officer of the
court, to that other cou rt.
Variation order by affidavit , etc.
. Where both former spouses are ordinari ly resident in different provinces , a court of
competent jurisdict ion may, in accordance with any applicable ru les of the court, ma ke a
variation order pursuant to su bsection () on the basis of the submissions of the former
Variation, Rescission, or Suspensi on of Child Support Orders 503
spouses, whether presented ora lly before the court or by means of affidavits or a ny means
of telecommunications, i f both former spouses consent thereto.
e provisions of section of the Divorce Act are complemented by sections () and
of the Federal Child Support Guidelines, wh ich provide as follows:
Recalculations
. () For greater certaint y, the provisions of these Guideline s that confer a discret ionary
power on a court do not apply to recalcul ations under paragraph .()(b) of the Act by a
provincial c hild support service .
Circumstances for vari ation
. For the purposes of subsect ion () of the Act, any one of the following constitutes a
change of circumstances:
(a) in the case where the amount of chi ld support includes a determi nation made in
accordance with the applicable ta ble, any change in circumsta nces that would result in
a different child support order or a ny provision thereof;
(b) in the case where the amount of chi ld support does not include a determination made
in accordance with a table, a ny change in the condition, means, needs or ot her circum-
stances of either spouse or of a ny child who is entitled to support;
(c) in the case of a n order made before May , the coming into force of section . of
the Act, enacted by sec tion of chapter of the Statutes of Canada, ().
Section of the Divorce Act and section of the Federal Child Support Guidelines
codify the ci rcumstances wherein a cour t may vary a child support order. e role of the
court is not that of an appellate tribuna l; the validity of the existing order is presumed and
the court’s role in a variation proceeding is si mply to determine whether there has been a
change in circumst ances since the order was granted that warrants its variation according
to the aforementione d provisions. e judicial a ssumption that the existi ng order is cor-
rect applies not only to the amount of child support but also to its dur ation. If the order has
expired, an application to continue child support wil l be treated by analogy to section ()
of the Divorce Act, which deals with the variation of spousal support orders, as an applica-
tion to vary that falls subject to section of the Divorce Act and section of the Federal
Child Support Guide lines, and not as an origina l application for support under section .
of the Divorce Act.
B. APPROPRIATE JUDICIAL DISTRICT; CHANGE OF VENUE
Where one of the spouses still resides in t he judicial dist rict wherein the divorce was granted,
an application to vary support gra nted by way of corollary relief must be brought in that
judicial d istrict, but such jurisdictional r ules are not to become an instrument of oppression
when one party has ample means a nd the other has very limited means. It may be possible to
Guidelines Amending the Federal Child Support Guidelines, SOR/-, s , amendi ng SOR/-, s .
Zarins v Cochrane, [] BCJ No (SC).
Gervais v Tongue, [] OJ No (SCJ).
Droit de la famille — , [] RDF (CS).
Martin v Martin (), RFL (d) (BCCA).
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