An individual may apply to the courts to vary Spousal or Child support under s.37 of the Family Law Act (FLA) or s.17 of the Divorce Act (DA). Spouses or former spouses may apply for a variation order under the DA (s.15).
In case of the order of support for a spouse or parent, s. 37(2) of the FLA holds that the court must be satisfied that there has been a material change in the dependant’s or the respondent’s circumstances or that evidence not available at the previous hearing has come available.
A material change in circumstances may be the following:
- cessation of child support;
- child commencing university;
- significant increases in the payor’s income;
- birth of the child in the payor spouse’s second marriage;
- the discovery of a permanent disability in payor or payee;
- financial change in circumstances;
- retirement of payee or payor;
- payee not making reasonable efforts to become employed;
- payee becoming eligible for CPP and other pensions;
- remarriage of payee, payor or both.
The above are examples of circumstances which may lead to potential variation in support; however, each case is based on its own facts. Like s. 37(2) of the FLA, s. 17(4.1) of the DA requires that a change in the condition, means, needs, or other circumstances of either former spouse has occurred since the spousal support order.
Under both the DA and the FLA a court making a variation in child support must do so in accordance with the guidelines. In order to vary child support there must be a change in circumstances within the meaning of s. 14 under the Federal Child Support Guidelines (FCSG).
For example, a variation order may be applied for if the payor’s income increases or decreases so as they are no longer paying the correct table amount where child support was determined in accordance with the FCSG table amount. The Ontario Child Support Guidelines are the same as the Federal Child Support Guidelines.