Changing Family Law Orders, Awards and Agreements Involving Child Support

As with all arrangements relating to children, there is no such thing as an absolutely final order or agreement for child support. It is always open to the court to change an order or agreement for child support, provided that the parties' circumstances, or the circumstances of the parties' children, have changed. Changing an order is called varying the order.

Generally speaking, payors will want to apply to have support reduced or terminated when their income has decreased or the children have grown up. Recipients will want to apply to have support increased when the payor's income has gone up or if the children's special expenses have increased.

This section talks about changing orders made under the federal Divorce Act and the provincial Family Law Act, changing orders that were made before the federal Child Support Guidelines came into effect on 1 May 1997, and changing orders that were made in a different jurisdiction. This section also discusses claims for retroactive support and the important case of D.B.S. v. S.R.G., [2006] 2 SCR 231.

Divorce Act Orders

Under s. 5 of the Divorce Act, the Supreme Court has the jurisdiction to vary an order for child support as long as at least one of the spouses is normally living in the province when the court proceeding to vary the order is started, or if both parties agree, no matter which province's courts made the original order.

Section 17 of the Divorce Act gives the court the authority to change, cancel, or suspend orders for support made under that Act. Section 17 says in part:

(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.

(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.

(6.2) Notwithstanding subsection (6.1), in making a variation order in respect of a child support order, a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied

(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and

(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.

(6.4) Notwithstanding subsection (6.1), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.

(6.5) For the purposes of subsection (6.4), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines.

This all boils down to these principles:

• A court can make an order changing a previous child support order if a change in circumstances has occurred since the order was made.
• Any new order for child support must usually be made according to the Child Support Guidelines.
• The court may make an order for support different from the Guidelines if there exists an order or agreement with special provisions for the direct or indirect benefit of the child that would make an order under the Guidelines inappropriate.
• The court may also make an order for support different from the Guidelines if both spouses agree to the order and reasonable arrangements have been made for the support of the children.

Before the Child Support Guidelines came into effect, an applicant had to show that there had been a serious and unforeseen change in circumstances before the court would hear an application to vary an order for child support. Now, an applicant must only show that there has been a change in income or the child's expenses to show that there has been a change in circumstances.

Section 14 of the Guidelines defines a change in circumstances as follows:

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 ...

Financial statements

When an application to vary a child support order is brought, one or both parties may have to produce their financial information. This information is almost always given in a Financial Statement, which is Form F8 in the Supreme Court or Form 4 in the Provincial Court. Like affidavits, it must be sworn before a notary or a lawyer or a commissioner for taking affidavits. If an application to vary a child support order is brought:

• The payor must produce a financial statement dealing with their income if the payor is paying child support according to the tables.
• Both parties must produce financial statements dealing with income if custody is shared or split.
• Both parties must produce complete financial statements covering income, expenses, assets and liabilities if there is a claim about the children's special expenses, or a claim for undue hardship, or the payor's income is above $150,000 per year, or one or more of the children are over the age of majority.

These new financial statements give the court the information it will need to make a new child support order. Links to and examples of Supreme Court forms are available in Supreme Court Forms & Examples.

Statutory provisions

These are the primary sections of the Divorce Act dealing with varying child support orders:

• s. 2: definitions
• s. 4: jurisdiction to make child support orders
• s. 5: jurisdiction to change orders
• s. 15.1: child support
• s. 15.3: child support has priority over spousal support
• s. 17: variation proceedings

Family Law Act orders

In British Columbia, the Federal Child Support Guidelines are adopted by regulation and the Family Law Act provides for variation of child support in virtually the same way as the Divorce Act.

Under s. 148(3), the court may set aside an agreement with respect to child support and make an order for child support in its place "if the court would make a different order" than what the agreement provides.

Financial statements

The law is the same with respect to financial statements whether the application to vary child support is brought under the Family Law Act or the Divorce Act. See Rule 5-1 of the Supreme Court Family Rules which sets out the requirements for financial disclosure in Supreme Court Family Proceedings, and Rule 4 of Provincial Court (Family) Rules for Provincial Court Family Proceedings.

Statutory provisions

These are the primary sections of the Family Law Act dealing with varying orders and setting aside agreements for child support:

• s. 1: definitions
• s. 146: more definitions
• s. 148: agreements for child support
• s. 149: orders for child support
• s. 150: calculating the amount of child support
• s. 152: varying orders for child support
• s. 173: child support has priority over spousal support

Orders made before 1 May 1997

The Child Support Guidelines came into effect on May 1, 1997. Child support orders or agreements before that date allowed child support payments to be tax-deductible for the payor and taxable for the recipient unless and until varied. It is doubtful that any such agreements or orders are still in effect but, if you have one, consult a lawyer.

Orders made outside British Columbia

It's rarely easy to change an order made outside of British Columbia because of the respect our courts must give to the authority and jurisdiction of the court that made the original order. (There are other reasons why it can be hard to change an order made outside of British Columbia, but that's the substance of it.) The process that will apply depends entirely on whether the original order was made under the federal Divorce Act or under the family law legislation of the place whose courts made the original order.

Divorce Act orders

Orders that were made elsewhere in Canada under the Divorce Act can be changed here under s. 5 of the Act, as long as both parties live in British Columbia. Where one party still lives in the province where the original order was made, a person living here can apply to change the original order using a cumbersome, time-consuming process described in ss. 18, 19 and 20 of the Act:

1. The applicant applies here for a provisional order changing the original order.
2. The court sends the provisional order to the place that made the original order
3. On notice to the other party, the original court holds a hearing to "confirm" the provisional order.
4. If the provisional order is confirmed, the original order is varied, and if it is not confirmed, the original order remains unchanged.

This process requires two hearings, one in British Columbia for the provisional order and a second in the original court to confirm that order. The court in the other province may or may not confirm the provisional order, and may choose to send the order back for more information. Until the provisional order is confirmed, the provisional order has no effect and the original order will continue to be the operative order.

Orders and agreements made under other laws

Orders and agreements that were made elsewhere in Canada under provincial family law legislation or were made in certain countries other than Canada, can be changed by someone living in British Columbia using the provincial Interjurisdictional Support Orders Act. Governments that have agreed to follow this process under the Interjurisdictional Support Orders Act are called reciprocating jurisdictions.

The countries that will cooperate with a proceeding under the Interjurisdictional Support Orders Act are: South Africa, Zimbabwe, Austria, the Czech Republic, Germany, Gibraltar, Norway, the Slovak Republic, Swiss Confederation, Northern Ireland, the United Kingdom, the United States of America and its protectorates, Hong Kong, Singapore, Australia, Fiji, Papua New Guinea, New Zealand, and Barbados and its dependencies.

The process under this Act is as follows:

1. The person asking to change the order or agreement, the applicant, completes forms provided by the provincial Reciprocals Office.
2. Our reciprocals office sends the forms to the court that made the original order or the court of the place where the agreement was made.
3. On notice to the other party, the original court holds a hearing on the applicant's application and may make an order varying the original order or agreement.

Under this process, there is only one hearing and the hearing is heard by the court that made the original order. The court in the reciprocating jurisdiction may or may not make the order that the applicant wants and may send the application back to British Columbia for more information. The original order or agreement will continue in effect until the court in the reciprocating jurisdiction varies it.

This new process is intended to simplify things by having just the one hearing. To do that, however, the process relies very heavily on paperwork and the officials of our government and the government of the reciprocating jurisdiction. As a result, applications under the Interjurisdictional Support Orders Act can take a long time to process.

Contact details for the British Columbia Reciprocals Office, along with more information and all of the forms required by the Interjurisdictional Support Orders Act can be found at www.isoforms.bc.ca.

To vary an order of a country that does not participate in the Interjurisdictional Support Orders Act process, you will have to apply to vary the order in that country.

Retroactive child support

Someone making a claim for retroactive child support is asking for an order that is to take effect retroactively, i.e. beginning at some date in the past, before the claim was made or heard. Typically, someone receiving child support will ask for an increase in the amount of support payable dating back to when the payor's income went up. If the claim is successful, the payor will be obliged to start making payments in the amount of the new order, plus a lump sum representing the difference between the support that was paid and the support that ought to have been paid. This can sometimes be a significant financial hardship, particularly where the period of retroactivity is long.

The trend in the recent case law on this subject has been to impose an ongoing duty on payors to disclose their income, whether they are asked for this information or not. The courts have been increasingly willing to subject payors to retroactive orders for child support.

The basic law: L.S. v. E.P.

The case of L.S. v. E.P., 1999 BCCA 393, a 1999 decision of our Court of Appeal, used to be the most important case on this issue in British Columbia, and still is the most important case for orders made under the Family Law Act. In this case, the court set out the factors that should be considered in deciding whether there should or should not be a retroactive order for support:

"A review of the case law reveals that there are a number of factors which have been regarded as significant in determining whether to order or not to order retroactive child maintenance. Factors militating in favour of ordering retroactive maintenance include:

(1) the need on the part of the child and a corresponding ability to pay on the part of the non-custodial parent;

(2) some blameworthy conduct on the part of the non-custodial parent such as incomplete or misleading financial disclosure at the time of the original order;

(3) necessity on the part of the custodial parent to encroach on his or her capital or incur debt to meet child rearing expenses;

(4) an excuse for a delay in bringing the application where the delay is significant; and,

(5) notice to the non-custodial parent of an intention to pursue maintenance followed by negotiations to that end.

"Factors which have militated against ordering retroactive maintenance include:

(1) the order would cause an unreasonable or unfair burden to the non-custodial parent, especially to the extent that such a burden would interfere with ongoing support obligations;

(2) the only purpose of the award would be to redistribute capital or award spousal support in the guise of child support; and,

(3) a significant, unexplained delay in bringing the application."

When hearing an application for retroactive child support, the court would apply these factors in deciding whether a retroactive award was warranted and, if so, how much the award should be for and when the retroactive effect of the order should begin.

A change in the law: D.B.S. v. S.R.G.

In July 2006, the Supreme Court of Canada released its judgment in four related cases, D.B.S. v. S.R.G., L.J.W. v. T.A.R., Henry v. Henry and Hiemstra v. Hiemstra, [2006] 2 SCR 231 and significantly clarified the law on retroactive child support. Where it changed the law, the changes were not all that far from our Court of Appeal's decision in L.S. v. E.P. These cases are referred to collectively as just D.B.S. v. S.R.G., the initials of the lead case.

The logic underlying the court's decision is this:

Before the Child Support Guidelines came into effect, child support was determined using budgets and a means and needs analysis looking at the means of the parents and the real or expected needs of the children. After the Guidelines came into effect on 1 May 1997, child support was expressly linked to the income of the payor, and the payor's duty became to pay support at the amount required for their income, using the tables attached to the Guidelines rather than budgets and the needs-and-means analysis. As a result, the court held that a duty to pay child support — whether under a separation agreement or a court order — is never final and absolute. No orders or agreements are final on the subject of support, and both parents have the obligation of ensuring that the right amount of child support is being paid on an ongoing basis.

The following is a summary of the important points in this decision.

The rationale for retroactive support

• Both parents have a duty "to ensure that their children are receiving a proper amount of support."
• "While the paying parent does not shoulder the burden of automatically adjusting payments" when his or her income increases, "this does not mean that (s)he will satisfy his/her child support obligation by doing nothing."
• If the payor's income increases and child support does not, "there will remain an unfulfilled obligation" that could warrant a retroactive award of support.

When retroactive child support should be ordered

When there is an existing order

• Child support orders "must be considered presumptively valid."
• "Where the situations of the parents have changed materially since the original order was handed down, that original order may not be as helpful as it once was in defining the parents' obligations."
• An obligation to pay the proper amount of support is "independent of any court order that may have been previously awarded." Where parents fail to adjust the amount of support payable, "a court may order an award that recognizes and corrects this failure."

When there is an existing agreement

• "A payor parent who adheres to a separation agreement that has not been endorsed by a court should not have the same expectation that (s)he is fulfilling his/her legal obligations as does a parent acting pursuant to a court order."
• "Agreements reached by the parents should be given considerable weight."
• "Where circumstances have changed," such that the "actual support obligations of the payor have not been met, courts may order a retroactive award."

When there is no order or agreement

• There is "no restriction" as to "the date from which the court may order that the award take effect."
• "Courts will have the power to order original retroactive child support awards in appropriate circumstances."

Factors in making retroactive child support awards

• The child must be eligible to receive support when the application for retroactive support is made; "child support is for children of the marriage, not for adults who used to have that status."
• The court has the discretion to award or not award retroactive support, but retroactive awards "need not be seen as exceptional."
• Retroactive child support should not be awarded if the child would not actually benefit from the award of if the award would cause hardship to the payor.
• "A court should strive for a holistic view of the matter and decide each case on the basis of its particular facts."
• The recipient's delay in seeking an increase in support will not favour a retroactive award where the recipient "knew higher support payments were warranted, but decided arbitrarily not to apply."
• The recipient's delay will not be considered if the recipient feared the payor's reaction or lacked "the financial or emotional means to bring an application, or was given inadequate legal advice."
• "Courts should not hesitate to take into account a payor's blameworthy conduct," and courts should "take an expansive view of what constitutes blameworthy conduct."
• Blameworthy conduct is "anything that privileges the payor parent's interests over his/her children's right to an appropriate amount of support," such as hiding income increases or intimidating a recipient from seeking an increase in support.

How far back child support awards should be retroactive

• The date of "effective notice" of the recipient's intention to seek an increase should be the furthest back a retroactive award should go.
• "Effective notice" doesn't mean the date of applying to court, but the date of notice of "any intention by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated" was given.
• Except where there is some blameworthy conduct on the part of the payor, it will "usually be inappropriate" to go further back in time than three years from the date of the hearing.
• Where there is blameworthy conduct, "the presumptive date of retroactivity" will be the time the payor's "circumstances changed materially."

How much retroactive child support should be ordered

• Retroactive awards must ensure that the amount "fits the circumstances."
• "Blind adherence to the amounts set out in the applicable Tables is not required — nor is it recommended."
• "It will be easier to show that a retroactive award causes undue hardship" than it is to show that a normal child support order causes undue hardship.
• A court "should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case."

In other words, retroactive support may be awarded whenever a payor is paying less than the Child Support Guidelines requires, if their financial circumstances change following the making of an order or agreement dealing with child support. In making such an order, the court must consider:

• any excuse for the recipient’s delay in seeking an increase in support,
• any blameworthy conduct on the party of the payor,
• the circumstances of the child, and,
• any hardship that a retroactive award would cause to the payor.

If a retroactive award is made, the award should be made retroactive to the date notice is given of the recipient's intention to seek an increase in the amount of support, but to a limit of three years. Where the payor’s conduct is blameworthy, then the support should be retroactive to the date of the change in the payor’s financial circumstances, and may be retroactive beyond the three-year mark.

Resources and links

Legislation

• Family Law Act
• Divorce Act
• Supreme Court Act
• Supreme Court Family Rules
• Provincial Court Act
• Provincial Court Family Rules
• Interjurisdictional Support Orders Act
• Interjurisdictional Support Orders Regulation
• Child Support Guidelines

Links

• The British Columbia Reciprocals Office
• Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)
• Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order

The above was last reviewed for legal accuracy by William Murphy-Dyson and Inga Phillips December 30, 2016.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.