Case for Varying Child Support Orders
Varying a child support order is a common application after separation and divorce, often made to reduce the amount being paid. Required to bring an application to vary child support is a change in circumstances so that such applications are not used as a means of appealing an old order.
The Alberta Court of Appeal decision in the family law case, Pritchard v. Christensson, 2018 ABCA 302, is a good example of what constitutes a material change of circumstances when varying child support. The Court confirmed where the payor's income fluctuates over the short term it does not amount to a “material change” and therefore does not affect a payor’s child support obligation.
At the Court of Appeal, Ms. Pritchard appealed a case management order which temporarily reduced her three boys’ support payments during the respondent payor, Mr. Christensson’s, medical absence from work for three months. She argued that the case management judge erred in finding a material change in circumstances and failed to follow the Federal Child Support Guidelines in ordering the varied amounts. The Court agreed and her efforts were successful in setting aside the reduction in child support.
The Court stated in paragraph 4:
A change in circumstances must be sufficiently long-lasting to justify varying a support order (Harder v Harder, 2003 SKQB 286 (CanLII) at para 29, 41 RFL (5th) 69). Short-term reductions in income do not generally merit a reduction in child support. Child support obligations should come before the payor’s other obligations. If a payor has fluctuating income or knows that his income is going to be fluctuating because of scheduled surgeries, he or she can budget accordingly. It should be the payor, not the child, who is required to make the necessary financial adjustment (Kinasewich v Kinasewich, 2000 ABQB 140 (CanLII) at para 42, 260 AR 181). The respondent, Mr. Christensson, could have planned for his reduced income due to absence from work.
When it comes to varying your child support Order, the Divorce Act (Canada) and the Federal Child Support Guidelines do not specify how long a change of circumstance must impact the payor for before the corresponding child support table amount is implemented. The Act and the Guidelines instead confirm that in varying a child support order, the Court must be satisfied that a change has occurred since the last order.
Further to this statement, Section 17(4) of the Divorce Act (Canada) outlines the following:
Factors for child support order
(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.
Additionally, Section 14 of the Federal Child Support Guidelines states:
Circumstances for variation
14 For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:
(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances 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 include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and
(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).
The Supreme Court of Canada precedent-setting decision, Willick v Willick, 1994 CanLII 28 (SCC),  3 SCR 670, 119 DLR (4th) 405), stands for the legal rule that an order cannot be varied without a material change of circumstances. Willick confirms what constitutes a “material change of circumstances”:
XX. In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances. This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation. The controversial aspect of this appeal is whether it is also a pre-condition to variation that there be a change in the circumstances of the payor spouse and the child or children in whose favour the support provisions were made. In determining this issue it is important to bear in mind that an order for maintenance of children is made by assessing the needs of the children having regard to the means of the parents. The purpose of s. 17(4) appears to be to permit the court to vary the order when the relationship between those factors changes in a material way. There can be a material change in the relation of the factors if one of them undergoes a significant change because the relationship between them is altered. The following passage from the reasons for judgment of Keenan Dist. Ct. J. in Moosa v. Moosa (1990), 1990 CanLII 3966 (ON SC), 26 R.F.L. (3d) 107 (Ont. Dist. Ct.), at pp. 11011 is apt:
Beyond dispute is that a dependent child is entitled to support from both parents. It is also expected that each parent has an obligation to provide for the support of the child and meet their particular needs. What is the measure of those needs? It depends on the age of the child, the standard at which the child could reasonably expect to be supported, and the means and circumstances of the parents. If the ability of either parent increases or decreases, it is reasonable to expect a similar adjustment in the level of support.
Remember: after separation and divorce, support is the right of the child, and both parents are obliged to play their part, regardless of the arrangement. As per Family law court, any reduction in the payor’s income must be long lasting before an order can be made that will affect a child’s financial situation.
Varying your child support order can be daunting, particularly if the payor is unwilling to provide financial disclosure of his or her total annual income. A call to a Legal Navigator at Coach My Case will help ensure the right amount of money ends up in the pocket of your child.