Varying Child Support Orders
Varying a child support order is a common application after separation and divorce which is often made to reduce the amount of child support being paid. What is required to bring an application to vary child support is a change in circumstances so that these applications are not just used as a way of appealing an old order.
The recent Alberta Court of Appeal decision in the family law case, Pritchard v. Christensson, 2018 ABCA 302, reminds us of what constitutes a material change of circumstances when it comes to varying child support. The Court confirmed where the payor's income fluctuates over the short term it will not amount to a “material change” and therefore will 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’ child support payments while the respondent payor, Mr. Christensson, was absent from work for medical reasons for about three months. She argued that the case management judge erred in finding a material change in circumstances had occurred and failed to follow the Federal Child Support Guidelines in ordering the varied amounts. She was successful in setting aside the reduction in child support at the Court of Appeal.
In Pritchard, the Court of Appeal found that the change of circumstances, being the payor’s decreased income, was not long-lasting enough to justify a variation of child support. The Court stated at 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.
Section 17(4) of the Divorce Act (Canada) states:
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.
Similar to the Divorce Act, 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:
It is established beyond dispute that a dependent child is entitled to look to both parents for support. It is also established beyond dispute that each parent has an obligation to provide for the support of the child. The amount of the support to be provided is the amount that will meet the needs of that particular child. The measure of those needs depends on a number of factors including the age of the child and the standard at which that child could reasonably expect to be supported. The reasonableness of the expectation is to be measured against the means and circumstances of the parents who have the obligation to provide the support. I know of no reason why that expectation should be any different for a child who is the innocent victim of the breakdown of the relationship between its parents. If the ability of the parents or either of them increases or decreases, it is reasonable to expect that the level of support of the child will increase or decrease. [Emphasis added.]
After separation and divorce, parents must remember that child support is the right of the child and the obligation of both parents to either pay or enforce the support. The purpose of child support is to ensure that children are receiving the benefit of both parent’s incomes, regardless of the parenting arrangement in place. Family law court have indicated that any reduction in the payor’s income must be long lasting before they make an order which will affect the children’s financial situation.
The family lawyers at Crossroads Law understand that varying your child support order may be daunting, especially if the payor is not willing to provide financial disclosure to confirm his or her total income on an annual basis. When your Court order for support is successfully varied, make sure to include a clause for the reciprocal exchange of disclosure to occur on an annual basis and child support to be varied according to the parenting arrangement and total incomes of the parties. Depending on the particular circumstance, it may also be beneficial for your child support order to be registered with the Recalculation Program of Alberta.
Contact the Alberta family lawyers or British Columbia family lawyers at Crossroads Law to confirm if you have experienced a “material change of circumstances” which will affect child support. We can help you obtain a child support order or vary an order if a material change of circumstances has occurred to ensure the payors and recipients obtain and pay the appropriate amount of child support for their children.