L. Variation where Amount of Child Support Not under Provincial or Territorial Table

Author:Julien D. Payne - Marilyn A. Payne

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Variation of an order for child support under section 14(b) of the Federal Child Support Guidelines, where the amount of child support was not determined under a provincial or territorial table, may be granted when there has been a change in the condition, means, needs or other circumstances of either spouse or former spouse or a change in the condition, means, needs or other circumstances of any child who is entitled to support.66The terms "condition," "means," "needs," and "other circumstances" of either former spouse provide a wide range of relevant considerations that leave the court with an extremely broad discretionary jurisdiction to vary, rescind or suspend a support order.67In determining the obligor’s available means, the nature and source of those means (whether salary, pension, other income or capital) is not material.68Misconduct is ordinarily an irrelevant consideration.69Income may be imputed to a spouse in the context of an application to vary child support for the purpose of determining whether a material change of circumstances has occurred within the meaning of section 14(b) of the Federal Child Support Guidelines.70The fairness of the original order is not subject to review in variation proceedings.71

The onus is on the applicant to show a change in circumstances that is substantial, unforeseen and of a continuing nature, such as would render the existing order unfair or unreasonable.72Minor changes in financial circumstances, such as fluctuations in the obligor’s income,73will not justify a variation order.74The changes must be of significance and affect

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the overall financial picture of one or both of the spouses.75A frivolous application to vary may be dismissed with costs on a solicitor/client basis.76A change in the financial circumstances of the obligor may justify a variation or termination of support obligations, as when the obligor subsequently has an increased ability to pay77or, conversely, where the obligor reaches the normal age of retirement or is forced to take early retirement with a substantial reduction in income.78On an application to reduce the amount of child support payable under an existing order, the applicant must satisfy the court on a balance of probabilities that his or her income has been reduced in that there is no longer any recourse to a former supplementary source of income, although the application may be dismissed without prejudice to the right to re-apply with further and better affidavit material.79A material change has been defined by the Supreme Court of Canada in Willick v. Wil-lick80as being a change of such magnitude that, if the court had known of the changed circumstances at the time of the original order, it is likely that the order would have been made on different terms.81The change must be significant and long-lasting.82A parent has a continuing obligation to support his or her children in spite of temporary unemployment,83or a fluctuating income; some degree of budgeting may be required.84If the change was known at the relevant time, it cannot be relied on as the basis for variation.85A future event that was within the contemplation of the parties when they made an agreement or that was considered by the court in making an order will not justify the variation of support when the future event occurs. This exception is narrow and requires proof that the likelihood of the future event operated on the minds of the parties or of the court when the support obligations were imposed.86In Chalmers v. Chalmers,87Bruce J., of the British Columbia Supreme Court, provided the following apt summary of the relevant considerations in determining whether there was a material change justifying a variation of support:

Whether there has been such a change is governed by the test developed in Willick v. Wil-lick, [1994] 3 S.C.R. 670: L.G. at para. 48. There are several passages in Willick that ad-

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dress the concept of material change and foreseeability. The relevant passages are quoted at length in paras. 49 to 51 of L.G. In my view, the principles derived from these passages are as follows:

  1. The change must be a material one; such that if known at the time it would have likely resulted in a different order.

  2.   What is a material change will in each case be determined on the particular facts. The court should not endeavour to divide into categories those changes that are material and those that fail to satisfy this standard.

  3. What is a sufficient change must be measured against the parties’ overall financial situation.

  4.   The fact that a change was objectively foreseeable does not mean that it was contemplated by the parties and forms part of the underlying basis for the original order.

  5. The onus rests with the applicant to prove a material change in the condition, means, needs or other circumstances warranting a review of spousal support; however, the court should maintain a flexible approach to the exercise of this discretion to ensure all of the relevant facts in a given case are considered.

Changes in spousal incomes may be insufficient to warrant variation of a child support order granted in a shared parenting situation falling within section 9 of the Federal Child Support Guidelines where the wife’s increased earning potential was anticipated at the time when the order was made and the husband’s reduced annual income was counter-balanced by fewer expenses following his remarriage.88A variation of a child support order under section 17 of the Divorce Act may be based on either a change in the circumstances of the child or a change in the circumstances of one or both former spouses.89Subject to the express provisions of section 14 of the Federal Child Support Guidelines, the principles of Willick v. Willick continue to apply to the variation of child support orders under the Federal Child Support Guidelines.90Pre-Guidelines case law dealing with proof of a material change as a prerequisite to any application to vary a child support order has no application to variation proceedings wherein the applicant seeks to vary a child support order providing for payment of the applicable table amount. The Willick criteria continue to be relevant, however, in non-table cases or when the amount of support was determined on a discretionary basis under section 3(2), 4, 5, 7, 9, or 10 of the Federal Child Support Guidelines. Regardless of which paragraph applies to a variation proceeding pursuant to section 17(4) of the Divorce Act and section 14 of the Federal Child Support Guidelines, an obligor cannot justify a reduction in the amount previously ordered on the basis of an unreasonable, self-induced reduction of his income.91The Willick test of a "material change of circumstances" is inapplicable to the variation of a pre-Guidelines child support order where reliance is placed on the implementation of the Guidelines as the triggering event for court-ordered variation.92An unforeseen reduction in the obligor’s income constitutes a material change

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in circumstances.93The same is true of an unforeseen increase in the obligor’s income.94In the absence of proof of a material change in circumstances, an application to vary a child support order must be dismissed.95Changes in parental incomes should be examined in relation to each other to determine whether there has been a material change to a significant degree. A father’s assumption of food, shelter and other incidental costs of an adult child may be offset by the child’s ability to transfer education and tuition credits to the father for income tax purposes.96In the absence of a finding of undue hardship within the meaning of section 10 of the Federal Child Support Guidelines, remarriage and its attendant financial obligations does not warrant variation of a pre-existing order for child support nor any reduction in the table amount of support payable in respect of the children of the second marriage. Where there are co-existing child support obligations owed to two families, the obligor cannot treat the children as if they were members of the same family and average out the child support obligation. Support for the child or children in each family unit must be calculated independently of each other.97The ambit of judicial inquiry in a variation proceeding appears to have triggered a difference of opinion between the majority judgment of Sopinka J. and the minority judgment of L’Heureux-Dubé J. in Willick v. Willick.98Justice Sopinka stated: that "[h]aving found that the conditions for variation exist, the trial judge . . . must re-assess the needs of the child in light of the change."99He had previously cited with approval the observation of Angers J.A. in Lanteigne v. Lanteigne100that "[t]he variation must reflect the changes that are disclosed."101L’Heureux-Dubé J. went further by suggesting that "it is artificial for a court to restrict its analysis strictly to...

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