It is not uncommon for a child support court order to be modified or changed, based on the circumstances of the payor. Circumstances sometimes dictate that the payor can no longer continue making the set payments, by no fault of their own, and will, therefore, need to have the support modified.
Take the Covid-19 pandemic as an example. Many people have unfortunately lost their jobs because of Covid-19, and are now faced with child support payments which they can no longer make. When something like this happens, there are several options the payor can take to modify the quantum of child support.
Child Support Court Order
When the parties cannot agree on changing the quantum of child support, the payor will need to bring a motion to change the support. The party wishing to change the quantum of child support must pass the “Material Change” test. This test dictates that the party must show that a material change of circumstances has occurred which would have resulted in a different order had the circumstances been known at the time the original order was made.
The Supreme Court of Canada in Willick v Willick further articulated what the Material Change test is. The court stated 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 change was known at the relevant time, it cannot be relied on as the basis for a variation.”
A change in the income of the parent receiving support is generally not a reason to change the separation agreement or court order. This is because that parent’s income is usually not taken into account when deciding how much child support should be paid.
Child Support Consent or Agreement
If the parties can work together and agree to change the quantum of child support, there is no need for the parties to bring the matter to court. The parties can proceed by either drafting a new child support agreement or they can include a consent into any existing agreement.
However, often when looking to make a change to a child support court order, it can be complicated. Seeking legal advice is often the most efficient way to ensure your change in child support will be successful.
Nussbaum Law is a Toronto based law firm that exclusively practices family and divorce law.
