Variation, Rescission, or Suspension of Child Support Orders
| Author | Julien D. Payne - Marilyn A. Payne |
| Pages | 483-537 |
VARIATION, RESCISSION, OR
SUSPENSION OF CHILD
SUPPORT ORDERS
A. RELEVANT STATUTORY AND REGULATORY PROVISIONS
Section of the Divorce Act provides as follows:
Variation, Rescission or Suspension of Orders
Order for variation, re scission or suspension
.() A court of competent jurisd iction may make an order varyi ng, rescinding or sus-
pending, prospect ively 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 provi sion 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 respec t 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 resp ect 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 IN CA NADA,
Courts may take agree ment, etc., into account
(.) Notwithstanding subsec tion (.), in maki ng a variation order in respect of a child
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 the cou rt is satisfied
(a) that specia l provisions i n an order, a judgment or a writt en agreement 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 applica ble guidelines would result in an a mount 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 deter mined 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 been m ade
for the support of the child to whom the order relates .
Reasonable arrangements
(.) For the purpo ses of subsection (.), in determ ining whether reasonable 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 unreason able
solely because the amount of suppor t agreed to is not the same as t he amount that would
otherwise have been det ermined in accordance with the applicable gu idelines.
. . .
Copy of order
() Where a court makes a variation order i n 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 ordina rily resident in different provinces, a court
of competent jurisdict ion may, in accordance with any appl icable rules of the court, ma ke
a variation order pursuant to subs ection () on the basis of the submi ssions of the former
spouses, whether presented ora lly before the court or by means of affidavits or any mea ns
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 which provide as follows:
Recalculations
() For greater certainty, the provisions of t hese Guidelines that confer a disc retionary
power on a court do not apply to recalcul ations under paragraph .()(b) of the Act by a
provincial ch ild support service.
Variation, Resci ssion, or Suspension of Chil d Support Orders
Circumstances for vari ation
. For the purposes of subsec tion () of the Act, any one of the following con stitutes
a change of circums tances:
(a) in the ca se where the amount of child support includes a det ermination made
in accordance with the applica ble 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 amount of child suppor t does not include a determination
made in accordance with a table, a ny change in the condition, means, nee ds or
other circumst ances of either spouse or of any child who is entitled to suppor t;
(c) in the 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 codif y
the circumstances wherein a court may vary a child support order. e role of the court
is not that of an appellate tribunal; the v alidity of the exist ing 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 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 du ration. 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 suppor t orders, as an applica-
tion to vary that fal ls 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 ordinar ily
resident at the commencement of the variation proceeding, or in a court whose jurisd ic-
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 vari ation proceedings are brought on dif-
ferent days before two courts of competent jurisdiction, the first in t ime prevails unless it
is discontinued withi n thirty days of its commencement, and where the variation proceed-
ings are brought on the same day, the Federal Court has exclusive jurisd iction to hear and
determine t he variation proceed ings.
Where a variation proceeding w ith 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
the Divorce Act may transfer the variation proceeding to a cour t in that other province. In
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.).
Divorce Act, R.S.C. (d Supp.), c. , s. (). And see Ellet v. Ellet (), R.F.L. (th) (Alta. Q.B.);
Staranowicz v. Staranowicz (), R.F.L. (d) (Ont. Ct. Gen. Div.); Erhardt v. Erhardt (),
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