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Difference between revisions of "Changing Family Law Orders, Awards and Agreements Involving Child Support"

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Changing Family Law Orders, Awards and Agreements Involving Child Support (view source)

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{{LSSbadge
{{LSSbadge
|resourcetype = <br/> a fact sheet on  
|resourcetype = <br/> more information on when you can change an order under the resource
|link        = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/changingFinalOrder.php when you can change <br/>a final order]  
|link        = [https://www.clicklaw.bc.ca/resource/4645 Court orders]  
}}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.  
}}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.


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]]''
* 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 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 ''[http://canlii.ca/t/1p0tv D.B.S. v. S.R.G.]'', [2006] 2 SCR 231.
This section also discusses claims for retroactive support and the important case of [http://canlii.ca/t/1p0tv D.B.S. v. S.R.G.], a 2006 of the Supreme Court of Canada.


==''Divorce Act'' Orders==
==Orders made under the ''Divorce Act''==


Under section 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.  
Under section 5 of the ''Divorce Act'', the Supreme Court has the jurisdiction to change an order for child support as long as at least one of the spouses is normally living in British Columbia when the court proceeding to change the order was started, or if both parties agree, 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 in part:
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:


<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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. ...</tt></blockquote>
<blockquote><tt>...</tt></blockquote>
<blockquote><tt>(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.</tt></blockquote>
<blockquote><tt>(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.</tt></blockquote>
<blockquote><tt>(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</tt></blockquote>
<blockquote><tt>(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</tt></blockquote>
<blockquote><blockquote><tt>(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</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions. ...</tt></blockquote></blockquote>
<blockquote><tt>...</tt></blockquote>
<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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.</tt></blockquote>


This all boils down to these principles:
(The "applicable guidelines" means the [[Child Support Guidelines]], a regulation to the ''Divorce Act'' 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.
*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.
*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 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 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 if both spouses agree to the order and reasonable arrangements have been made for the support of the children.
*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 the child's expenses to show that there has been a change in circumstances.
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 a "change in circumstances" as follows:
Section 14 of the Guidelines defines "change in circumstances."


<blockquote><tt>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:</tt></blockquote>
<blockquote><tt>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:</tt></blockquote>
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===Financial statements===
===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, and which, like affidavits, must be sworn before a notary or a lawyer or a commissioner for taking affidavits:
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.


*The payor must produce a financial statement dealing with their income if the payor is paying child support according to the tables.
Here are the rules about when one or both parents have to provide a financial statement:
*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.
*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 with 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. Links to and examples of Supreme Court forms are available in Supreme Court Forms & Examples.


===Statutory provisions===
===Statutory provisions===


These are the primary sections of the ''[[Divorce Act]]'' dealing with varying child support orders:
These are the primary sections of the ''[[Divorce Act]]'' about changing child support orders:


*s. 2: definitions
*section 2: definitions
*s. 4: jurisdiction to make child support orders
*section 4: the court's authority to make child support orders
*s. 5: jurisdiction to change orders
*section 5: the court's authority to change orders
*s. 15(1): child support
*section 15.1: child support
*s. 15(3): child support has priority over spousal support
*section 15.3: child support has priority over spousal support
*s. 17: variation proceedings
*section 17: applying to change an order


==''Family Law Act'' orders==
==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.


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]].
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:


Under section 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.
<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) evidence of a substantial nature that was not available during the previous hearing has become available;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.</tt></blockquote></blockquote>
 
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===
===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.
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 with 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. Links to and examples of Supreme Court forms are available in Supreme Court Forms & Examples.


===Statutory provisions===
===Statutory provisions===


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


*s. 1: definitions
*section 1: general definitions
*s. 146: more definitions
*section 146: definitions specifically about child support
*s. 148: agreements for child support
*section 148: agreements about child support, including setting aside agreements about child support
*s. 149: orders for child support
*section 149: orders about child support
*s. 150: calculating the amount of child support
*section 150: orders about child support
*s. 152: varying orders for child support
*section 152: changing orders for child support
*s. 173: child support has priority over spousal support
*section 173: child support has priority over spousal support


==Orders made before 1 May 1997==
==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.
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 tax consequences for either the payor or the recipient of support.


==Orders made outside British Columbia==
==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.
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 ''[http://canlii.ca/t/84l3 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 someone who lives 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.


===''Divorce Act'' orders===
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 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 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 sections 18, 19, and 20 of the Act:
===Orders under the ''Divorce Act''===


#the applicant applies here for a "provisional" order changing the original order,
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:
#the court sends the provisional order to the place that made the original order,
#on notice to the other party, the original court holds a hearing to "confirm" the provisional order, and
#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.
#Submit an application to the [http://www.isoforms.bc.ca British Columbia Reciprocals Office], using the forms supplied by the office.
#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.
#The Reciprocals Office where the other parent lives sends the application to the court or the child support calculation service in that province.
#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.
#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.  


===Orders and agreements made under other laws===
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===
{{LSSbadge
{{LSSbadge
|resourcetype = <br/> more information on <br/>   
|resourcetype = <br/> more information on <br/>   
|link        = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/what_if_one_party_outside_BC_Interjurisdictional.php Interjurisdictional issues in child support]  
|link        = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/what_if_one_party_outside_BC_Interjurisdictional.php Interjurisdictional issues in child support]  
}}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 ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. Governments that have agreed to follow this process under the ''Interjurisdictional Support Orders Act'' are called ''reciprocating jurisdictions''.
}}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 ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''.  
 
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:
 
#the person asking to change the order or agreement, the ''applicant'', completes forms provided by the provincial [http://www.isoforms.bc.ca Reciprocals Office],
#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, and
#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.
 
<span class="noglossary">Contact</span> details for the [http://www.isoforms.bc.ca British Columbia Reciprocals Office], along with more information and all of the forms required by the ''[http://www.isoforms.bc.ca Interjurisdictional Support Orders Act].''
 
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, and the courts have been increasingly willing to subject payors to retroactive orders for child support.
 
===The basic law: ''L.S. v. E.P.''===


''[http://canlii.ca/t/52lj L.S. v. E.P.]'', 1999 BCCA 393, is a very important case when it comes to retroactive child support in British Columbia. At paragraph 66, the court set out factors to consider when deciding if making a retroactive order for support is appropriate:
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 applications change child support orders are:  


<blockquote>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.</blockquote>
* 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), Papua New Guinea
* Europe — Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, United Kingdom of Great Britain and Northern Ireland
* Caribbean — Barbados and its Dependencies
* Africa — South Africa, Zimbabwe
* Asia — Hong Kong, Republic of Singapore


A court would apply these factors in deciding:  
See the [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation] for the current list.
* whether a retroactive award is appropriate,
* if so, how much the award should be for, and
* from what date the retroactive order should begin.


===A change in the law: ''D.B.S. v. S.R.G.''===
Here are the steps involved in this process:  


In July 2006, the Supreme Court of Canada released its judgment in four related cases, [http://canlii.ca/t/1p0tv ''D.B.S. v. S.R.G.'', ''L.J.W. v. T.A.R.'', ''Henry v. Henry,'' and ''Hiemstra v. Hiemstra''], 2006 SCC 37 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.
#Submit an application to the [http://www.isoforms.bc.ca British Columbia Reciprocals Office], using the forms supplied by the office.  
#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.
#The Reciprocals Office where the other parent lives sends the application to the court in that province or country.
#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.
#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.  


The logic underlying the [http://canlii.ca/t/1p0tv court's decision] is this:
Under this process, there is only one hearing and the hearing is heard by the court where the other parent lives.  


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


The following is a summary of the important points in this decision.
==Retroactive orders for child support==


====The rationale for retroactive 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.


*Both parents have a duty "to ensure that their children are receiving a proper amount of support."
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.
*"While the paying parent does not shoulder the burden of automatically adjusting payments" when their 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====
In 2006, the Supreme Court of Canada released its decision in four related cases, [http://canlii.ca/t/1p0tv 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.)


=====When there is an existing order=====
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.


*Child support orders "must be considered presumptively valid."
Here are a few of the things the court will think about in deciding to make a retroactive order.
*"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=====
*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 has acting in a blameworthy manner in avoiding disclosing their income or in discouraging the recipient from seeking an increase in support.


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


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


====Factors in making retroactive child support awards====
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 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 Child Support Recalculation Service==
*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 or 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 <span class="noglossary">account</span> 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 [https://childsupportrecalc.gov.bc.ca 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:


*The date of "effective notice" of the recipient's intention to seek an increase should be the furthest back a retroactive award should go.
*you must have a Provincial Court order for child support or a written agreement about child support,
*"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.
*you and the other parent must both live in British Columbia,
*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.
*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,
*Where there is blameworthy conduct, "the presumptive date of retroactivity" (i.e. the date back in time that the order should start from) will be the time the payor's "circumstances changed materially."
*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 will impact the amount of child support being paid.  


====How much retroactive child support should be ordered====
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.


*Retroactive awards must ensure that the amount "fits the circumstances."
The program can also recalculate parents' proportionate share of the children's special expenses and extraordinary expenses, but only if:
*"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" — compared to normal child support (also called ''prospective child support''), a court is more open to find that an order that goes back in time (and imposes years of cumulative liability for payment on the payor) will cause ''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, when a payor is paying less than the Guidelines require, a court may award retroactive support if the payor's financial fortunes improved after the date 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 part 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 point in time that the payor received notice of the recipient's intention to seek a child support increase, but to a limit of three years. If the payor’s conduct is blameworthy, then the support should be retroactive to the actual date the payor’s financial circumstances changed, even if that date is beyond the three-year mark.
<!---HIDDEN
==Further Reading in this Chapter==


* <span style="color: red;">bulleted list of other pages in this chapter, linked</span>
*both parents' incomes are stated in the order or the agreement, and
END HIDDEN--->
*each parent's proportionate shares of the children's special expenses and extraordinary expenses are stated in the order or the agreement.


==Resources and links==
==Resources and links==
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* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/849w Provincial Court Act]''
* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* [http://canlii.ca/t/b8rn Provincial Court Family Rules]
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation]
* [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation]
Line 234: Line 219:


* [http://www.isoforms.bc.ca Ministry of Attorney General Interjurisdictional Support Services] (BC reciprocals office)
* [http://www.isoforms.bc.ca Ministry of Attorney General Interjurisdictional Support Services] (BC reciprocals office)
*[https://clicklaw.bc.ca/resource/4645 Legal Services Society's Family Law website's information page "Court orders"]
*[https://clicklaw.bc.ca/resource/4645 Legal Aid BC's Family Law website's information page "Court orders"]
**See "Change an order or set aside an agreement made in BC" and "When can you change a final order?"
**See "When can you change an order?"


The above was last reviewed for legal accuracy by [[Bill Murphy-Dyson|William Murphy-Dyson]] and [[Inga Phillips]] June 14, 2019.
The above was last reviewed for legal accuracy by [[JP Boyd]] on 28 June 2022.


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{{JP Boyd on Family Law Navbox|type=chapters}}
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