Motions to Change: Child Support

When can I change my child support order?

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In our previous post, we discussed the court procedure for Motions to Change a final order or Agreement that has been filed with the court. While it is important to follow the correct procedure when bringing a Motion to Change, there are other thresholds that must be met before your Motion will be successful.  In this series of three posts we will discuss the specific test for bringing Motions to Change each of child support, spousal support, and custody/access arrangements.

What do I need to prove in order to vary child support?

You must show that a material change of circumstances has occurred, as provided by the applicable Child Support Guidelines, that would have resulted in a different order had the circumstances been known at the time the original order was made.

Depending on the amount of support being paid, the person requesting a change must prove either:

  1. Any change in circumstance which would result in a different amount of child support payable under the Guidelines; or
  2. If the amount payable was different than what was prescribed by the Guidelines, any change in the condition, means, needs or other circumstances of either spouse or of any child entitled to support.

This change must be material, and must be a change that would have resulted in a different order.

The “Material Change” test was articulated by the Supreme Court in Willick v Willick, where they stated:

“…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.”

The onus is on the party seeking a variation to prove that a material change occurred since the date of the original order which would have resulted in a different order being made.

What constitutes a “material change” differs on a case-by-case basis, and the courts will look to the specific facts of each unique case in making a determination.

What is a Material Change?

A material change might be a change in the circumstances of the child – such as going to university, earning an income, illness/disability, or a change in the parenting schedule.  It might also be a change in the circumstances of the parents, including an increase/decrease in their income.

The following are some examples from past cases where the court considered whether a change was “a material change”.

Ungbu v Udofe, 2017 ONSC 3879 (CanLII)

This case involved a father seeking a reduction in child support and the termination of his obligation to pay $100/month for special/extraordinary expenses. The court found that had the parties known that the time the initial order was given that the father would be unable to earn $40,000.00 per year as anticipated, they would not have sought the order they did. As such, his change in income during those years constituted a material change in circumstances, and arrears were reduced. The court also found that the children graduating high school meant that they were no longer participating in the activity for which the father was paying $100.00 per month. As such, those obligations should have terminated when the children left high school.

 Westburg v Whitfield, 2016 ONSC 1607

In this case, the Respondent sought an order retroactively adjusting the amount of child support payable. The Respondent argued that a material change of circumstances occurred when the children’s living arrangements changed, and when the children began their post-secondary education, which should have resulted in a reduction in child support. The court agreed that each of these events constituted a material change of circumstances for the purpose of varying child support.

Stevenson v. Smit, 2014 ONCA 521 (CanLII)

In this case, the Ontario Court of Appeal found that a father failed to prove that a material change of circumstances had occurred. The parents had entered into a Separation Agreement that provided that neither parent would pay child support according to the Guidelines, and would instead share equally all major child-related expenses. When the father’s income decreased, he argued that his limited income and lack of capital constituted a material change that was sufficient to warrant a reduction in child support. The court disagreed, and found that the father’s diminished income and need to resort to capital to satisfy his obligations was known at the time of signing the Agreement.