As your child grows, circumstances will inevitably change. Your child’s financial needs tend to increase as they get older, and your financial situation could change as well. You could move, change jobs, or any number of events could impact your financial situation. Many parents wonder how these changes might affect their obligations with regard to spousal support and child support. This article will answer your questions regarding when and how a child support order can be varied.
Child Support Determined by Table
If your child support order was determined according to the applicable provincial or territorial table, then you may seek a variation to the order when there is any change in circumstances that would result in a different amount pursuant to the table.
Applicable changes include when the paying parent’s annual income and capacity to pay child support has increased or declined due to circumstances out of the parent’s control. Thus, if you were to lose your job, or alternatively experience a promotion, the amount you owe in child support may need to be varied.
However, it is important to keep in mind that this does not apply where parties intentionally choose to be unemployed or underemployed. You cannot quit your job in an attempt to avoid paying child support. In the situation where you are hoping to have the amount of child support reduced, you will need to be prepared to provide reliable and credible evidence of your reduced annual income.
Other changes may warrant a change in the child support amount as well, such as newly encountered or extraordinary expenses, a reconstitution of either household, relocation requiring a different table to apply, or the implementation of revised table amounts.
Child Support Not Determined by Table
Even when child support has not been determined by a provincial or territorial table, but rather by another means, it may still be varied. In this case, if there has been a change in the condition, means, needs, or other circumstances of either spouse or former spouse, or the child, a variation may be appropriate. This standard is much broader than the standard used if you are seeking a variation of an amount determined by the appropriate table. The court has much discretion in these cases because of the wide range of relevant considerations.
The court will consider any “material” change in circumstances – this simply means changes that would have resulted in a different amount if they were present at the time the original order was issued. A material change must be significant, long lasting, and involuntary. A temporary hiatus from work does not negate a parent’s obligation to support his or her children. And, as we discussed previously, a court will not entertain a variation request where a party has become intentionally and purposefully unemployed or underemployed.
Say you have fallen significantly behind on your child support payments and are obligated to pay a large sum in arrears. You may have fallen behind on your payments for a myriad of reasons, but under the right circumstances you can get the amount you owe in arrears reduced.
If you are seeking to have the amount you owe in arrears reduced, you bear the burden of proving to a judge that there has been a significant and long lasting change in circumstances.
In considering whether there has been such a change in circumstances rendering a remission of arrears appropriate, the court will consider the following factors:
- the nature of the support obligation sought to be varied;
- the obligor’s ability to pay the arrears when they fell due;
- the ongoing financial capacity of the obligor;
- the ongoing needs of the payee and child;
- unreasonable and unexplained delay by the payee in enforcing the arrears;
- unreasonable and unexplained delay by the payor in seeking relief from the support obligation; and
- whether enforcement of payment will cause hardship to the payor.
It is very rare for a court to reduce or cancel an amount owed in arrears – it is only appropriate in cases where it would be grossly unfair not to reduce or cancel the amount owed. If you fail to prove this however, you may still be granted relief in the form of a realistic payment plan over time.
In sum, if you have experienced a significant change in circumstances, you may be able to have the amount of child support you are obligated to pay altered.