Variation, rescission, or suspension of child support orders
| Author | Julien D. Payne, Marilyn A. Payne |
| Pages | 497-556 |
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 var ying, rescind ing 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 variation order any prov ision 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 court makes a variation order in respe ct of a child support order, the
court shall s atisfy itself th at a change of circumsta nces as provided for in the applicable
guidelines has o ccurred since the mak ing of the child support order or the la st variation
order made in respect of that order.
. . .
Conduct
() In making a variation order, the court sha ll not take into consideration any conduct
that under this Act cou ld not have been considered in making the order in re spect of which
the variation order is soug ht.
Guidelines apply
(.) A court making a variation order in re spect of a child support order shall do so in
accordance with t he applicable guidelines.
CHILD SU PPORT GUIDELINES I N CANADA,
Courts may take agree ment, etc., into account
(.) Notwithstanding subsec tion (.), in maki ng a variation order in respect of a chi ld
support order, a court may award an amount t hat is different from the amount that would
be determined in accorda nce with the applicable guidelines if t he court is satisfied
(a) that special provisions in an order, a judgment or a written ag reement respecting
the financial obl igations of the spouses or the div ision or transfer of their prop-
erty, directly or i ndirectly benefit a child, or t hat special provisions have otherw ise
been made for the benefit of a child; and
(b) that the application of the applicable guidelines would res ult in an amount of child
support that is i nequitable given those spe cial provisions.
Reasons
(.) Where the court awards, pursuant to subsec tion (.), an amount that is di fferent
from the amount that would be det ermined in accordance with t he applicable guidelines,
the court shal l record its reasons for having done so.
Consent orders
(.) Notwithstanding subse ction (.), a court may award an amount t hat is different
from the amount that would be deter mined in accordance with the applic able guidelines on
the consent of both spouses i f it is satisfied that reasonable arrangements have be en made
for the support of the child to whom t he order relates.
Reasonable arrangements
(.) For the purp oses of subsection (.), in determining whether reasonable arr ange-
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 unreas onable
solely because the amount of suppor t agreed to is not the same as t he amount that would
otherwise have been de termined in accordance with the applicable gu idelines.
. . .
Copy of order
() Where a court makes a variat ion order in respect 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 ordi narily resident in different provinces, a cour t
of competent jurisdict ion may, in accordance with a ny applicable ru les of the cour t, make
a variation order pursuant to su bsection () on the basis of the subm issions 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 t hese Guidelines that confer a dis cretionary
power on a court do not apply to recalcul ations under paragraph .()(b) of the Act by a
provincial c hild support service .
Variation, Resci ssion, or Suspension of Chil d Support Orders
Circumstances for vari ation
. For the purposes of subsect ion () of the Act, any one of the followi ng constitutes
a change of circums tances:
(a) in the ca se where the amount of child support includes a de termination made
in accordance with the applic able table, any change in circum stances that would
result in a different chi ld support order or any provision thereof;
(b) in the case where the amou nt of child support does not include a determi nation
made in accordance with a table, a ny change in the condition, means , needs or
other circumst ances of either spouse or of any child who is entitled to suppor t;
(c) in t he case of an order made before May , , the coming into force of section
. of the Act, enacted by sect ion 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 court 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 warr ants its variation according
to the aforementione d provisions. e judicial a ssumption that the existing 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 a n 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 original application for support under section .
of the Divorce Act.
B. JUR ISDICTION
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 fa ll within the
definition of “court” in section () of the Divorce Act. To avoid the exercise of competing or
conflicti ng jurisdict ions by courts of compet ent jurisdiction i n different provinces, se ctions
() and () of the Divorce Act provide that where variat ion proceedings are brou ght on dif-
ferent days before two courts of competent jurisdiction, the first in t ime prevails unless it is
discontinued within t hirty days of its commencement, and where the variation proceedings
are brought on the same day, the Federal Court – Trial Division has exclusive jurisd iction
to hear and determine the var iation proceedings .
Where a variation proceeding with respect to child support is joined with a n 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.); Kaatz v. Kaatz, [] S.J. No. (Q.B.).
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