Changing Family Law Orders, Awards and Agreements Involving Child Support

There is no such thing as an absolutely final order or agreement about child support. It is always open to the court to change an order or agreement for child support, as long as the parties' circumstances, or the circumstances of the parties' children, have changed. In general, people paying child support, payors, will want to ask to have support reduced or terminated when their income has decreased or the children have grown up. People receiving child support, recipients, will want to ask 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
• changing orders made under 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 outside British Columbia.

This section also discusses claims for retroactive support and the important case of D.B.S. v S.R.G., a 2006 decision of the Supreme Court of Canada.

Orders made under the Divorce Act

Under section 5 of the Divorce Act, the British Columbia Supreme Court has the jurisdiction to change an order for child support as long as at least one of the spouses was normally living in British Columbia when the court proceeding to change the order was started, or if both parties agree that the court should have jursidiction, no matter which province's court 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. "Changing" an order is called varying the order. Section 17 says:

(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.

(The "applicable guidelines" means the Child Support Guidelines, a regulation that describes the rules that the courts must apply when making an order for child support.)

These parts of section 17 all boil down to the following ideas:

• 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 tables in the Child Support Guidelines.
• The court may make an order for child support different from the Guidelines tables if the parents have an order or agreement with special provisions for the direct or indirect benefit of the child that makes an order under the Guidelines tables inappropriate.
• The court may also make an order for support different from the Guidelines tables 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 a change in the children's expenses to prove that there has been a change in circumstances.

Section 14 of the Guidelines defines "change in circumstances."

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; ...

Financial statements

When an application to change a child support order is made, one or both parents will have to share their financial information. This information is almost always given in a court form called a Financial Statement, Form F8 in the Supreme Court. Like affidavits, financial statements must be sworn before a notary public, a lawyer, or a commissioner for taking affidavits.

Here are the rules about when one or both parents have to provide a financial statement:

• The payor must produce a financial statement describing their income if the payor is paying child support according to the Guidelines tables.
• Both parents must produce financial statements describing their income if each parent has the primary residence of one or more of the children or the parents share the children's time equally or near-equally.
• Both parties must produce complete financial statements describing their income, expenses, assets, and liabilities if the application includes a claim about the children's special expenses or extraordinary expenses, a claim for undue hardship, if the payor's income is above $150,000 per year, or if one or more of the children are over the age of majority.

Financial statements give the court the information it needs to make a new child support order.

Statutory provisions

These are the primary sections of the Divorce Act about changing child support orders:

• section 2: definitions
• section 4: the court's authority to make child support orders
• section 5: the court's authority to change orders
• section 15.1: child support
• section 15.3: child support has priority over spousal support
• section 17: applying to change an order

Agreements and orders under the Family Law Act

Section 148(3) of the Family Law Act gives the Supreme Court and the Provincial Court the authority to cancel the parts of an agreement that talk about child support, and make an order for child support in place of those parts, "if the court would make a different order" than what the agreement provides.

Section 152(1) of the act gives the court the authority to change, cancel, or suspend orders for child support made under that act. Usually, it's the Supreme Court that can change earlier Supreme Court orders and it's the Provincial Court that can change earlier Provincial Court orders. "Changing" an order is called varying the order. Section 152(2) says:

(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration:

(a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made;

(b) evidence of a substantial nature that was not available during the previous hearing has become available;

(c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.

The federal Child Support Guidelines have been adopted for the provincial Family Law Act. As a result, the rules about changing child support orders under the provincial legislation are almost exactly the same as they are under the federal Divorce Act, described above.

Financial statements

When an application to change a child support order is made, one or both parents will have to share their financial information. This information is almost always given in a court form called a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court. Like affidavits, financial statements must be sworn before a notary public, a lawyer, or a commissioner for taking affidavits.

Here are the rules about when one or both parents have to provide a financial statement:

• The payor must produce a financial statement describing their income if the payor is paying child support according to the Guidelines tables.
• Both parents must produce financial statements describing their income if each parent has the primary residence of one or more of the children or the parents share the children's time equally or near-equally.
• Both parties must produce complete financial statements describing their income, expenses, assets, and liabilities if the application includes a claim about the children's special expenses or extraordinary expenses, a claim for undue hardship, if the payor's income is above $150,000 per year, or if one or more of the children are over the age of majority.

Financial statements give the court the information it needs to make a new child support order.

Statutory provisions

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

• section 1: general definitions
• section 146: definitions specifically about child support
• section 148: agreements about child support, including setting aside agreements about child support
• section 149: orders about child support
• section 150: orders about child support
• section 152: changing orders for child support
• section 173: child support has priority over spousal support

Orders made before 1 May 1997

The Child Support Guidelines came into force on 1 May 1997. Section 14(3) of the Guidelines says that this change in the law allows anyone with a child support order made before 1 May 1997 to apply to change that order. If you have one of these old orders, although it's doubtful that any of these orders are still in effect, you can ask to change the order without having to show that anyone's income has gone up or down, or that the child's special expenses or extraordinary expenses have changed.

Orders and agreements made before the Guidelines came into effect are special because the payor could claim a tax deduction for their child support payments, while the recipient had to claim the payments they received as taxable income. Today, orders and agreements about child support have no income tax consequences for either the payor or the recipient of support.

Orders made outside British Columbia

It's not always easy to change an order made outside of British Columbia, mainly because the courts of this province don't have authority over the courts of other provinces, territories and countries. However, both the federal Divorce Act and the provincial Interjurisdictional Support Orders Act have special provisions about how orders for child support made elsewhere in Canada can be changed by someone living in British Columbia. The Interjurisdictional Support Orders Act also talks about how people who live here can ask to change child support orders made in countries which have agreements with British Columbia. Orders that were made in other countries can only be changed through an application in the court that made the original order. You should speak to a lawyer in that country to get more information about your options.

If you can change an order made outside of British Columbia, the process you'll use depends on whether the original order was made under the federal Divorce Act or under the legislation of the place whose courts made the original order. The processes are, however, very similar.

Orders under the Divorce Act

Orders that were made elsewhere in Canada under the Divorce Act can be changed here under section 5 of the act, as long as both parties now live in British Columbia. If one or both of you live in other provinces, a person living in British Columbia can apply to change the original order using the process described in sections 18.1, 18.2 and 18.3. Here are the steps involved:

1. Submit an application to the British Columbia Reciprocals Office, using the forms supplied by the office.
2. The Reciprocals Office checks to make sure that your application is complete and sends it to the Reciprocals Office in the province where the other parent now lives.
3. The Reciprocals Office where the other parent lives sends the application to the court or the child support calculation service in that province.
4. If it the application is sent to a court, the court will serve the application on the other parent, along with information about what they have to do to reply to your application.
5. The court hears the application and may make an order changing the child support order, may ask for more evidence, or may dismiss the application.

In this process, there is only one hearing, and the hearing takes place in the province where the other parent lives.

It's important to know that the original order will continue in effect until and unless the court changes the order.

Orders made under other laws

Orders that were made elsewhere in Canada under provincial family law legislation, or were made in certain other countries outside of Canada, can be changed by someone living in British Columbia using the process described in sections 25, 26 and 27 of the provincial Interjurisdictional Support Orders Act.

Every province in Canada has its own Interjurisdictional Support Orders Act and follows the same process. The countries that also follow the Interjurisdictional Support Orders Act process and have agreed to cooperate with applications for changes to child support orders are:

• United States of America — all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa, and the US Virgin Islands
• Pacific Ocean — Australia, Fiji, New Zealand (including the Cook Islands), and Papua New Guinea
• Europe — Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, and United Kingdom of Great Britain and Northern Ireland
• Caribbean — Barbados and its Dependencies
• Africa — South Africa and Zimbabwe
• Asia — Hong Kong and Republic of Singapore

See the Interjurisdictional Support Orders Regulation for the current list.

Here are the steps involved in this process:

1. Submit an application to the British Columbia Reciprocals Office, using the forms supplied by the office.
2. The Reciprocals Office checks to make sure that your application is complete and sends it to the corresponding organization in the province or country where the other parent lives.
3. The Reciprocals Office where the other parent lives sends the application to the court in that province or country.
4. The court will then serve the application on the other parent, along with information about what they have to do to reply to your application.
5. The court hears the application and may make an order changing the child support order, may ask for more evidence, or may dismiss the application.

Under this process, there is only one hearing, and the hearing is heard by the court where the other parent lives.

It's important to know that the original order will continue in effect until and unless the court changes the order.

Retroactive orders for child support

Someone making a claim for "retroactive" child support is asking for an order that will take effect starting 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. (Someone who is not receiving child support, but was entitled to get it, will ask for an order dating back to when they became entitled to receive child support.) If the claim is successful, the payor will be required 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 courts have generally been willing to impose an ongoing duty on payors to disclose their income, whether the recipient asks for this information or not, and the courts have been increasingly willing to make retroactive orders for child support.

In 2006, the Supreme Court of Canada released its decision 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, all of which concerned retroactive child support. (These cases are referred to collectively as just "D.B.S. v. S.R.G.," the name of the lead case.)

The court decided that, under the Child Support Guidelines, child support is tied to the income of the payor, giving payors a duty to pay child support in the amount required by their income, as determined using the Guidelines tables. Because of the approach taken by the Guidelines, no order or agreement for child support is ever final. In fact, both parents have a continuing obligation to make sure that the right amount of child support is being paid as the payor's income changes from time to time, and the court will make a retroactive order when the parents fail to adjust the amount of child support on their own.

Here are a few of the things the court will think about in deciding to make a retroactive order.

• Whether the recipient delayed seeking an increase in support when they "knew higher support payments were warranted, but decided arbitrarily not to apply."
• Whether the recipient delayed seeking an increase in support because they feared the payor's reaction or lacked "the financial or emotional means to bring an application, or were given inadequate legal advice."
• Whether the payor was acting in a blameworthy manner in avoiding disclosing their income or in discouraging the recipient from seeking an increase in support.

(Blameworthy conduct is "anything that privileges the payor parent's interests over his/her children's right to an appropriate amount of support.")

In general, retroactive child support will not be awarded if the child would not actually benefit from the award, or if the award would cause serious financial hardship to the payor.

If the court decides to make a retroactive order, it then has to decide how long ago the order should start. In general, the retroactive order will start when the recipient gave notice of their intention to ask for increased child support. However, the retroactive order can start earlier than that if the payor has acted in a blameworthy manner. In cases like that, the order can start on the date the payor's income changed.

The law about retroactive child support is complicated, for both payors and recipients. If you have a problem about retroactive child support, you should look at D.B.S. v. S.R.G. and speak to a family law lawyer.

The Child Support Recalculation Service

The Child Support Recalculation Service is a provincial government program created under section 154 of the Family Law Act that can review and adjust the amount of child support payable where the parents' incomes have gone up or down. The program is available in limited circumstances:

• you must have a Provincial Court order for child support or a written agreement about child support,
• you and the other parent must both live in British Columbia,
• the child support order must not have been based on undue hardship, self-employment income, imputed income or a pattern of income, as opposed to last year's income,
• the payor cannot be someone who stands in the place of a parent, like a non-parent guardian, and
• there must not be an application underway that might impact the amount of child support being paid.

The program may or may not be able to help if one or more of the children are 19 years old or older, the children's time is shared equally or near-equally between the parties, or if a parent's income is over $150,000 per year. The program will tell you if it can help.

The program can also recalculate parents' proportionate share of the children's special expenses and extraordinary expenses, but only if:

• both parents' incomes are stated in the order or the agreement, and
• each parent's proportionate share of the children's special expenses and extraordinary expenses are stated in the order or the agreement.

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

• Ministry of Attorney General Interjurisdictional Support Services (BC reciprocals office)
• Legal Aid BC's Family Law website's information page "Court orders"
  • See "When can you change an order?"

The above was last reviewed for legal accuracy by JP Boyd on 28 June 2022.

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.