Difference between revisions of "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, providing that the parties' circumstances, or the circumstances of the parties' children, have changed.  

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 place. 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.

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 where the court proceeding to vary the order is started, 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. "Changing" an order is called ''varying'' the order. Section 17 says this:

*Any new order for child support must be made according to the Child Support Guidelines.

*The court may make an order for support different from the Guidelines if a previous order or agreement has made special provisions for the care 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.

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:

*Both parties must produce complete financial statements covering income, expenses, assets and liabilities if there is a claim about the children's special expenses, a claim for undue hardship, 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, if it's willing to vary the original order. Links to and examples of Supreme Court forms are available in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].

<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><tt>(b) evidence of a substantial nature that was not available during the previous hearing has become available;</tt></blockquote>

<blockquote><tt>(c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.</tt></blockquote>

 

 

Under s. 148(3), the court may set aside an agreement on 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.

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 and Form 4 in the Provincial Court:

 

*Both parties must produce complete financial statements covering income, expenses, assets and liabilities if there is a claim about the children's special expenses, a claim for undue hardship, the payor's income is above $150,000 per year, or one or more of the children over the age of majority.

The fact that an order or agreement was made before the Child Support Guidelines came into effect does not mean that a court ''must'' change the order or agreement to comply with the Guidelines. Although s. 17(6.1) of the ''[[Divorce Act]]'' requires the court to make an order that complies with the Guidelines, this rule does not apply to agreements and orders made before 1 May 1997. Don't be discouraged by this, however, as the court still retains the discretion to apply the Guidelines and generally will.

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 a bunch of other reasons why it can be hard to change an order made outside of British Columbia, but that's the meat 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.

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 whose courts made the original order, 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:

This process requires two hearings, one here 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 here 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.

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, the United Kingdom, the United States of America and its protectorates, the Special Administrative Region of Hong Kong, Singapore, Australia, Fiji, Papua New Guinea, New Zealand, and Barbados and its dependencies.

#the person asking to change the order or agreement, the ''applicant'', completes a bunch of forms provided by the provincial [http://www.isoforms.bc.ca Reciprocals Office],

#on notice of 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.

<span class="noglossary">Contact</span> details for the [http://www.isoforms.bc.ca British Columbia Reciprocals Office], along with all of the forms required by the ''Interjurisdictional Support Orders Act'' can be found at [http://www.isoforms.bc.ca www.isoforms.bc.ca].

Someone making a claim for ''retroactive'' child support is asking for an order that is to work 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 retroactive effect is long.

In July 2006, the Supreme Court of Canada released its [http://canlii.ca/t/1p0tv 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 weren't 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.