Variation, rescission or suspension of child support orders
| Author | Julien D. Payne/Marilyn A. Payne |
| Pages | 445-494 |
VARIATION, RESCISSION OR
SUSPENSION OF CHILD
SUPPORT ORDERS
A. R ELEVANT STATUTORY AND REGULATORY PROVISIONS
epartiescannotvaryacourtorderbymeansofanagreement;aneworderisrequired.
Section of the Divorce Act and section of the Federal Child Support Guideline s codify
the circum stances wherei n a court may va ry a chi ld support order. e role of the cour t
isnotthatofanappellatetribunal;thevalidityoftheexistingorderispresumedandthe
court’sroleinavariationproceedingissimplytodeterminewhethertherehasbeena
change in circumstances since the order was granted that warrants its variation according
to the aforementioned prov isions.e judici al assumpt ion that the exi sting order is cor-
rect applies not onl y to the amount of child support but also to its dur ation. If the order has
expired, an appl ication to continue child suppor t will be treated by a nalogy to sec tion ()
of the Divorce Act, which deal s 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 Guidelines, a nd not as an original appl ication for support under sect ion .
of the Divorce Act.
Section of the Divorce Act providesasfollows:
V, R S O
Order for variation, resci ssion or suspension
.() A court of competent jurisdiction may make an order varying, rescinding or sus-
pending,prospectively orretroactively,
(a) a support order or any provi sion thereof on application by eit her or both former
spouses
...
Gervais v. Tongue, [] O.J. No. (S.C.J.).
Zarins v. Cochrane, [] B.C. J. No. (S.C.).
Gervais v. Tongue, [] O.J. No. (S.C.J.).
CHILD SUPPORT GUIDELINES IN CANADA,
Terms and conditions
() e court may include in a v ariation order any provision that under t his Act could
havebeenincludedintheorderinrespectofwhichthevariationissought.
Factors for child support order
() Before the court makes a var iation order in respec t of a child support order, the
court shal l satisf y itself that a cha nge of circums tances as prov ided for in the applicable
guidelines h as occurred si nce the maki ng of the child supp ort order or the last va riation
ordermadeinrespectofthatorder.
...
Conduct
()Inmakingavariationorder,thecourtshallnottakeintoconsiderationanyconduct
thatunderthisActcouldnothavebeenconsideredinmakingtheorderinrespectofwhich
thevariationorderissought.
Guidelines apply
(.)Acourtmakingavariationorderinrespectofachildsupportordershalldosoin
accordance with the applicable guidelines
Courts may take agreeme nt, etc., into account
(.) Notwithstandingsubsection (.), in makinga variation orderin respect of a child
supportorder,acourtmayawardanamountthatisdifferentfromtheamountthatwould
be determined in accordancewith the applicable guidelines if the court is satisfied
(a) thatspecialprovisionsinanorder,ajudgmentorawrittenagreementrespectingthefi-
nancial obl igations of the spouses or the di vision or transfer of their prop erty, directly
or indirectly benefit a child, or that special provisions have otherwise been made for
thebenefitofachild;and
(b) that the application of the applicable g uidelines wou ld result in an amou nt of child
support that is i nequitable given those spec ial provisions.
Reasons
(.)Wherethecourtawards,pursuanttosubsection(.),anamountthatisdifferent
from the amount th at would be determine d in accordance wit h the applicable guidel ines,
thecourtshallrecorditsreasonsforhavingdoneso.
Consent orders
(.) Notwithstanding subsection (.), a court may award an amount that is different
from the amount th at would be determined in accorda nce with the applicable gu idelines on
the consent of both spouses if it is satisfied that reasonable arrangements have been made
forthesupportofthechildtowhomtheorderrelates.
Reasonable arrangements
(.) For the purposes of subsection (.), in determining whether reasonable arrange-
mentshavebeenmadeforthesupportofachild,thecourtshallhaveregardtotheapplic-
able guidelines . However, t he court shall not consider the ar rangement to be unreasonable
solely because the a mount of support agreed to is not the same as t he amount that would
otherwis e have been determined in accordance w ith the applicable guideline s.
...
Variation, Resci ssion or Suspension of Child Supp ort Orders
Copy of order
()Whereacourtmakesavariationorderinrespectofasupportorder...madeby
anothercourt,itshallsendacopyofthevariationorder,certifiedbyajudgeorofficerofthe
court, to that ot her court.
Variation order by affidavit, et c.
. Where both former spouses are ordi narily resident in different provi nces, a court
of competent juris diction may, in accordance with any appl icable rules of t he court, ma ke
avariationorderpursuanttosubsection ()onthebasisofthesubmissionsoftheformer
spouses, whether presented orally before the court or by mean s ofa ffidav its or any means
of telecommunicat ions, if both former spouses consent t hereto.
e provisions of s ection of the Divorce Act arecomplementedbysections ()and
of the Federal Child Support Guideline s which provide as follows:
Recalculations
()For greater certainty, theprovisionsof these Guidelinesthat confera discretionary
power on a court do not apply to re calculat ions under parag raph .()(b) of the Act by a
provincial ch ild support service.
Circumstances for variation
. For the purpose s of subsection () of the Act, any oneof the follow ing constitutes
achangeofcircumstances:
(a) in the case where t he amount of child s upport includes a deter mination made in ac-
cordance with the applicable table, any changein circumstances thatwould result in a
different chi ld support order or any provision thereof;
(b) in the case where the amount of ch ild support does not include a determi nation made
in accordance with a table,any change in the condition, means, needsor other circum-
stancesofeitherspouseorofanychildwhoisentitledtosupport;
(c) in the case of an order made before May , , the coming into force of se ction . of
the Act, enacted by s ection of chapter of the Statutes of Ca nada, ().
An application m ay be brought pursuant to sec tion () of the Divorce Act where no mech-
anism ex ists for administ rative recalculation.
B. JUR ISDICTION
Pursuanttosection()oftheDivorce Act, the juri sdiction to he ar and determi ne a varia-
tion proceeding vests in the court of a province wherein either former spouse is ordinarily
resident at the commencement of the variation proceeding, or in a court whose jurisdic-
tion is accepted by the former spouses,providedthatanysuchcourtmustfallwithinthe
definition of “cour t” in section () of the Divorce Act. To avoid the exercise of competing or
conflicti ng jurisdiction s by courts of competent juri sdiction in different prov inces, sections
()and()oftheDivorce Act provide t hat where variation proceed ings are brought on di f-
Guidelines Amending the Federal Child Support Guideline sFederal Child Suppor t Guidelines, SOR/-,s. , amending SOR/-, s.
.
Johnson v. Checkowy,[]S.J.No.(Q.B.).
Tatlock v. Lays, [] A.J. No. (Q.B.); Kaatz v. Kaatz,[]S.J.No.(Q.B.).
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