Variation, rescission, or suspension of child support orders
| Author | Julien D. Payne - Marilyn A. Payne |
| Pages | 493-554 |
493
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 juri sdiction may make an order va rying , rescinding or
suspending, prospec tively or retroactively,
(a) a support order or any provision thereof on application by either or bot h 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
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.
494 CHILD SUPPORT GUIDELINES IN CANADA, 2017
Courts may take agree ment, etc., into account
(.) Notwithsta nding subsect ion (.), in making a variation order in respect 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 provision s in an order, a judgment or a written agreement respecting t he fi-
nancial obligation s of the spouses or the division or tran sfer of their property, directly
or indirectly b enefit a child, or that specia l provisions have otherw ise 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 h ave regard to the appli-
cable guidelines. However, the court sh all not consider the arrangement to be u nreasonable
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 makes 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 spous es are ordinarily resident in different provi nces, a court
of competent jurisdict ion may, in accordance with any applicable r ules of the court, make
a variation order pursuant to sub section () on the basis of the submis sions of the former
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 certainty, the provisions of these Guidel ines that confer a disc retion-
ary power on a court do not apply to reca lculations under paragraph .()(b) of the Act by
a provincial c hild support servic e.
Chapter 13: Variation, Rescission, or Suspension of Child Sup port Orders 495
Circumstances for vari ation
. For the purposes of subs ection () of the Act, any one of the following consti-
tutes a change of circu mstances:
(a) in the case where the amount of child support includes a deter mination made in ac-
cordance with the applicable t able, any change in circumsta nces that would result in a
different child support order or any provision thereof;
(b) in the case where the amount of child support does not i nclude 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 an 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 judicia l assumption that the exist ing 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. JURISDICTION
Pursuant to section () of the Divorce Act, the jurisdiction to hear and determine a varia-
tion proceeding vests in the cour t of a province wherein either former spouse is ordinarily
resident at the commencement of the variation proceeding, or in a court whose juris dic-
tion is accepted by the former spouses, provided that any such court must fal l within the
definition of “court” in section () of the Divorce Act. To avoid the exercise of competing
or conflict ing juris dictions by courts of competent juris diction i n different provi nces, sec-
tions () and () of the Divorce Act provide that where variation proceeding s are brought
on different days before two courts of competent jurisdiction, the fi rst in time prevail s
unless it is discontinued w ithin thir ty days of its commencement, and where the variation
proceedings are brought on the same day, the Federal Court — Trial Division has exclusive
jurisdiction to hear and determ ine the variation proceedings.
Where a variation proceeding with respect to child support is joined wit h an applica-
tion for a custody order that is opposed, and the child is most subst antially connected with
another province, a court with juri sdiction over the variation proceeding under section of
Guidelines Amending the Federal Child Suppor t Guidelines, SOR/-, s. , amending SOR/-, s. .
Zarins v. Cochrane, [] B.C.J. No. (S.C.).
Gervais v. Tongue, [] O.J. No. (S.C.J.).
Tatlock v. Lays, [] A.J. No. (Q.B.); Shipowick v. Shipowick, MBQB ; Kaatz v. Kaatz, []
S.J. No. (Q.B.).
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