MacLean Law has handled hundreds of Retroactive Variation Reduction Child Support cases in the 40+ years since it was founded. In today’s blog on Retroactive Variation Reduction Child Support, we explore the legal rules a court uses to decide if child support should be reduced, by how much and for how long.
Canceling child support arrears isn’t automatic. You need to have all your financial ducks in a row. The principle “you snooze you lose” applies to applications to cancel child support arrears. Don’t delay. Pick up the phone now and meet with us: Fraser Tel 604 697 2820.
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Our top-rated* Retroactive Variation Reduction Child Support lawyers are often asked how easy is it to cancel or reduce support arrears? The answer depends on:
- the reason for the reduction in income;
- the circumstances of the paying spouse and their children;
- how prolonged the change in financial circumstances is;
- An involuntarily and prolonged change in income increases your chances of success whereas a voluntary short-term reduction in salary or self-employed income is unlikely to be successful; and
- a change in parenting time to a shared parenting regime obviously impacts support.
Certain key principles apply to Retroactive Variation Reduction Child Support disputes with the most important being the rather stringent test a paying parent must meet to reduce support and cancel arrears.
Best Retroactive Variation Reduction Child Support Tips – The Law
The recent case of D.M.H.P. v. R.J.C.P. set out the law on retroactive variation reduction of child support when a father who lost custody was devastated for a period of time and had his income drop from what it was when he was last before the Court. The husband received a $15,000 reduction of support arrears and a new lower monthly payment which was some but not all of the reduction he sought. The case reviewed the law on the reduction of child support prospectively and retroactively and dealt with how arrears of child support can be canceled.
The judge looked at the father’s changed circumstances and said:
[64] While I have found that the loss of custody over the Children and their relocation to Ohio had a significant impact on the father’s emotional state and impaired his income earning capacity for a period of time, the evidence does not establish that the father’s mental distress continued indefinitely. Nor am I persuaded that these circumstances had a substantial impact on the father’s ability to earn an income beyond a limited period of time after the trial in 2010: see Tarbujaru v. Tarbujaru, 2016 BCCA 214 at para. 24.
Retroactive Variation Of Child Support Law
Next, the court reviewed the law and Child Support Guidelines on what change is needed to succeed on a Retroactive Variation Reduction Child Support claim.
[57] On an application under s. 152 of the FLA, the court may change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively. Before making such an order, the court must be satisfied that at least one of the following exists:
(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; and
(c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.
[58] In this case, the first condition is applicable. Accordingly, a change of circumstances is defined in s. 14 of the Guidelines as follows:
14. 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 child support:
(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…
[59] Our Court of Appeal has confirmed that s. 14 of the Guidelines does not supplant the test of materiality for a change in circumstances as set out in Willick v. Willick, [1994] 3 S.C.R. 670: see G.M.W. v. D.P.W., 2014 BCCA 282 at para. 32; C.L.B. v. A.H.B., 2013 BCCA 472 at para. 15; Bockhold v. Bockhold, 2006 BCCA 472 at paras. 32-34.The threshold requirement for variation of an existing order was described in Willick (at 688) as follows:
In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances. This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation.
[60] In G.M.W., our Court of Appeal (at para. 33) summarized the following relevant principles from Willick:
(i) the onus is on the applicant to establish a material change of circumstances (at 689);
(ii) the existing order is presumed to have accurately assessed the needs of the children and therefore the correctness of that order must not be reviewed in the variation proceeding (at 687);
(iii) the actual circumstances of the parties will determine if there has been a material change of circumstances during the relevant period (at 688); and
(iv) the approach to the making of child support orders is child-centered and requires consideration of the children’s needs, the relative ability of the spouses to pay and the joint obligation of the parents toward their children (at 689-690).
Attribution Of Guideline Income
It is well established that when determining the Guideline income of a payor parent, a court must consider not only the amount of income that a parent actually earns but also the amount of income a parent could earn if working at capacity: Van Gool v. Van Gool (1998), 64 B.C.L.R. (3d) 94 at para. 28 (C.A.); Hanson v. Hanson (1999), 92 A.C.W.S. (3d) 1024 at para. 9 (B.C.S.C.); Barker v. Barker, 2005 BCCA 177 at para. 19; Beissner v. Matheusik, 2015 BCCA 308 at para. 44.
Full and Accurate Disclosure Needed
Failing to properly detail your reduced financial ability will lead to a negative outcome. Sometimes paying spouses refuse to make full disclosure or hide income or opportunities and this usually proves fatal on their reduction application Contacting a Retroactive Variation Reduction Child Support lawyer can help you increase your chances of success.
[63] To find a change of circumstances, the court must be satisfied that it has been presented with accurate and reliable evidence: see Muller v. Muller,2015 BCSC 370 at para. 34. ……..
DBS factors Apply to Payors Seeking Reduction
So what factors does the court look at in a Retroactive Variation Reduction Child Support case?
[68] In G.M.W., (at para. 39) our Court of Appeal confirmed that a retroactive variation award also requires consideration of the factors set out in D.B.S. v. S.R.G., 2006 SCC 37. The factors include: (i) the circumstances surrounding the delay in bringing the application; (ii) the payor parent’s conduct; (iii) the children’s circumstances; and (iv) any hardship caused by a retroactive child support order. As explained in G.M.W. at para. 43:
[43]
- A finding of unreasonable delay will militate against a retroactive child support award (para. 104).
- Similarly, a payor parent’s blameworthy conduct, defined as “anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support” will also militate against a retroactive order (paras. 106-109).
- The circumstances of the children are also relevant in order to ensure that they receive the benefit of a support order to which they are entitled, in a timely manner (paras. 110-113).
- Lastly, consideration of the hardship that may be occasioned by a retroactive order is not limited to the payor parent (paras. 114-116).
Cancellation Of Arrears Law
Fraser explains the test to cancel arrears is very stringent so being organized and having someone who can forcefully represent you is critical.
(ii) Should the arrears for child support and spousal support be reduced or cancelled?
[72] Under s. 174(1) of the Family Law Act, the court “may reduce or cancel arrears owing under an agreement or order respecting child support or spousal support if satisfied that it would be grossly unfair not to reduce or cancel the arrears”.
[73] The law is clear that an applicant seeking to cancel or reduce arrears bears a heavy burden and the courts should be slow to make such orders: Wensel v. Rhodes, 2012 BCCA 245 at para. 12; D.W.T. v. B.S.T., 2016 BCSC 1978.
[74] In Earle v. Earle, 1999 BCSC 289, Martinson J. affirmed that a reduction or cancellation of arrears can only be obtained if the applicant provides detailed and full financial disclosure that: (1) the change he or she points to is significant and long lasting; (2) the change was real and not one of choice; and (3) every effort was made to earn money (or more money) during the time in question and those efforts were not successful.
[75] The British Columbia Court of Appeal has confirmed that arrears will only be cancelled in a situation where it is clear that the payor is unable to pay now and unable to pay in the future: MacCarthy v. MacCarthy, 2015 BCCA 496 at para. 54.
Our top-rated* Retroactive Variation Reduction Child Support lawyers can help you get through the maze of legal principles to the other side so you and your children move forward with a fair amount of child support.
We can’t help you until you call us. Call Fraser MacLean at Tel 604 697 2820
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