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How Do I Change BC Child Support?

How Do I Change BC Child Support? is probably one of the most popular questions our top-rated family lawyers get asked. MacLean Law’s award-winning family lawyers answer this question daily and help parents increase, decrease, vary, cancel arrears and deal with material changes in the ability to pay and in the expenses for children. Changing BC child support payments can be tricky given all the rules involved. Manbeen Saini explains how to change BC child support under the Divorce Act, the Family Law Act, and the Child Support Guidelines. For a  Lorne MacLean, QC’s case setting a record for the highest BC spousal and child support awards ever even after a substantial family property of 20 million was received click here.

Changing Child Support 101 1 877 602 9900

Here are 4 ways when child support might need to be changed:

  1. If the changes affect the amount of support that would be paid under the child support guidelines (for example, the paying spouse’s income has gone up or down and the amount of child support should change or in shared parenting situations the either parent’s income has changed).
  2. If you have important financial evidence that wasn’t available before.
  3. If financial information was missing and not discovered until after the order was made.
  4. If special and extraordinary expenses for the child have changed.
  5. If the child is over the age of majority and still dependent, lives away from home or is no longer dependent.

How Do I Change BC Child Support?

What happens when a person required to pay child support under an order loses their job? What do courts consider in an application to vary/change a support order? What do courts look at in Changing BC child support payments?

This article deals with the issue of how to change BC child support. Both the Family Law Act of British Columbia (the “FLA”) and the Divorce Act (the “DA”) allows for an application to vary support orders.  In general, orders made under the DA and the FLA may be varied if there has been an important change in circumstances since the order was made. Not only does the change has to be important, but also varying the order needs to be the right solution.

Divorce Act: Changing BC Child Support Payments 1 877 602 9900

Section 17(4) of the DA deals with factors the court considers to vary child support and spousal support orders; it reads:

17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses; or

(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

Factors for child support order

(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.

Factors for spousal support order

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

Family Law Act: How To Change BC Child Support

Sections 152 and 167 of the FLA allows for a variation of support orders; it reads:

Changing, suspending or terminating orders respecting child support

152   (1) On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively.

(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.

Changing, suspending or terminating orders respecting spousal support

167   (1) On application, a court may change, suspend or terminate an order respecting spousal support, and may do so prospectively or retroactively.

(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 the condition, means, needs or other circumstances of either spouse has occurred since the order respecting spousal 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 either spouse was discovered after the order was made.

Material or “Big” Change In Circumstances Needed To Vary Support 1 877 602 9900

Under both Acts, an important change in circumstances is required before the court will change the previous support order.

The question that arises then, is what amounts to a change in circumstances that will let us understand How To Change BC Child Support?

The recent case of Lay v. Lay, 2019 BCSC 1845 (“Lay”) deals with the issue of what constitutes a material change in circumstances on an application to vary child support orders.

In Lay, the parties separated after being in a relationship for over 10 years. They had one child together. Upon separation, the parties agreed to enter a consent order dealing with, amongst other issues, the issue of spousal and child support (the “Consent Order”). The Consent Order imputed an income of $105,000 to Mr. Lay and $38,000 to Ms. Lay and accordingly ordered Mr. Lay to pay set-off child support of $616 per month and spousal support of $1,302 per month. The Order further allowed for a review of spousal support after January 1, 2020.

One year after the Consent Order, Mr. Lay was laid off from his employment as a result of the mine, where he worked, being closed indefinitely. Consequently, Mr. Lay brought an application claiming a material change of circumstances had occurred such that the Consent Order should be varied. Of issue, in this case, was whether the lay off constituted a material change in circumstances.

The case provides a good summary of the legal principles required to establish a material change in circumstances

(See L.M.P. v. L.S., 2011 SCC 64 at paras. 29-35, Sandy v. Sandy, 2018 BCCA 182 at para. 58 and Pawluck v. Pawluck, 2019 BCCA 167 at para. 23.):

  1. Parties may vary the child and spousal support orders under s. 17 of the Divorce Act, R.S.C. 1985, c. 3 [DA] only if there has been a material change of circumstances since the making of the orders;

  2. The onus is on the person trying to establish that there has been a material change;

  3. To determine whether a change is “material”, the question is whether the change, if known at the time of the orders, would likely have resulted in different terms;

  4. If the change was anticipated at the time of the orders, it cannot be relied on as the basis for a variation;

  5. What amounts to a material change will depend on the actual circumstances at the time the orders were made; and

  6. A material change must have some degree of continuity and not merely be a temporary circumstance.

Changing BC child support payments? 1 877 602 9900

Ms. Lay took the position that the lay off was not a material change in circumstances as throughout Mr. Lay’s employment history (8 years of working in the mining industry), there were numerous periods of layoffs and/or lockouts. Therefore, she stated that the layoffs were anticipated at the time of the Consent Order. In particular, she relied on the fact that a few months before the Consent Order, Mr. Law was informed by his employer of a potential layoff as a result of the employer’s effort to reduce operating costs. Ms. Lay relied on the legal principle number 4 (listed above), in that, because the change was anticipated at the time of the Consent Order, it could not be relied on as a basis for the variation.

Ms. Lay further took the position that because Mr. Lay is experienced, he should be able to find a comparable job and thus be able to replace his income by working at another mine, or in a similar industry. Based on this, she argued that his circumstances further fail to meet the “continuity” aspect of the legal test.

The judge ultimately allowed for the variation of support and was satisfied that Mr. Lay’s layoff constituted an unanticipated, continuing and material change in Mr. Lay’s circumstances.

The Judge found that that the indefinite closure of the mine was unanticipated by the parties at the time of the Consent Order:

[13] First, the previous layoffs and lockout were temporary whereas the mine is currently closed indefinitely. The mine has specifically indicated that it expects operations will be suspended beyond the one-year recall period in the collective agreement. I take this to mean that, if the mine resumes operations, Mr. Lay and other union employees will not be eligible to be recalled by the mine. While Mr. Lay can re-apply for employment with the mine if it re-opens, his employment with the mine is effectively over.

[14] I have reviewed the correspondence between counsel leading up to the JSC and final divorce orders. Ms. Harder’s position that short-term layoffs would not constitute a material change in circumstances was clear. There is, however, no indication in the correspondence or the balance of the evidence that the parties contemplated an indefinite closure of the mine nor the loss of Mr. Lay’s employment at the mine. In short, I am satisfied that the indefinite closure of the mine was unanticipated by the parties at the time of the JSC and final divorce orders.

With respect to whether Mr. Lay’s circumstances were continuous, the Honourable Judge found, the change in Mr. Lay’s employment to be a continuing circumstance:

[15]Second, even though Mr. Lay’s layoff is indefinite, Ms. Harder properly notes that Mr. Lay was out of work for less than two months before he brought this application. She submits that Mr. Lay can replace his income by working at another mine, or in a similar industry, including in camp settings in other provinces or territories.

[16]It is no secret that the forest industry in the Central Interior is experiencing a significant contraction. It is also no secret that employment in the oil industry is down. I do not know whether high paying jobs in mining or other resource extraction industries are available in other parts of British Columbia, the Yukon, Alberta or further afield. Either way, in view of his equal parental responsibilities and time with Kane, I consider it reasonable for Mr. Lay to have geographically restricted his search for work. (For a similar conclusion in somewhat similar circumstances see Goldman v. Goldman, 2010 BCSC 1835). I also accept Mr. Lay’s evidence that there is very little, perhaps no, available high paying work in and around Williams Lake that he is qualified for.

[17]Given the indefinite nature of Mr. Lay’s layoff and his poor prospects for high paying work anywhere reasonably close to Kane, I consider the change in Mr. Lay’s employment to be a continuing circumstance.

For more information on the variation of child support orders, or on changing BC child support payments, contact the MacLean Family Law experts. 1 877 602 9900