17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,
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- (a) a support order or any provision of one, on application by either or both former spouses;
- (b) a parenting order or any provision of one, on application by
- (i) either or both former spouses, or
- (ii) a person, other than a former spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent; or
- (c) a contact order or any provision of one, on application by a person to whom the order relates.
AP Commentary: Parties can change a support or parenting order by bringing a court application. The party seeking the change must show there has been a material change in circumstances in addition to meeting the requirements for obtaining the order in the first place.
The need to show a material change in circumstances is a threshold question for all variation applications.
A material change in circumstances is a change that is substantial, unforeseen and continuing.
Leave of the court
(2) A person to whom the parenting order in question does not relate may make an application under subparagraph (1)(b)(ii) only with leave of the court.
Variation of parenting order
(2.1) If the court makes a variation order in respect of a contact order, it may make an order varying the parenting order to take into account that variation order, and subsections (3) and (11) apply as a consequence with any necessary modifications.
Variation of contact order
(2.2) If the court makes a variation order in respect of a parenting order, it may make an order varying any contact order to take into account that variation order, and subsections (3) and (11) apply as a consequence with any necessary modifications.
Conditions of order
(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought, and the court has the same powers and obligations that it would have when making that order.
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.
AP Commentary: The law already contemplates an annual review/variation of child support so that the amount of child support payable reflects the amount being earned by the payor parent.
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.
AP Commentary: Factors that justify a change in spousal support include failure to disclose financial information by the payor, failure of recipient to become self-sufficient, inflation resulting in decreased purchasing power, justifiable retirement, business failure, termination of child support, declining health, recipient’s increased income,
AP Commentary: an increase in the payor’s income in and of itself does not equate to an entitlement to increased spousal support.
Factors for parenting order or contact order
(5) Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9).
Variation order
(5.1) For the purposes of subsection (5), a former spouse’s terminal illness or critical condition shall be considered a change in the circumstances of the child, and the court shall make a variation order in respect of a parenting order with regard to the allocation of parenting time.
Relocation — change in circumstances
(5.2) The relocation of a child is deemed to constitute a change in the circumstances of the child for the purposes of subsection (5).
Relocation prohibited — no change in circumstances
(5.3) A relocation of a child that has been prohibited by a court under paragraph (1)(b) or section 16.1 does not, in itself, constitute a change in the circumstances of the child for the purposes of subsection (5).
Conduct
(6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought.
AP Commentary: Despite popularly held misconceptions, adultery or infidelity have no impact on support orders or variation of such orders.
Guidelines apply
(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.
Court may take agreement, etc., into account
(6.2) Notwithstanding subsection (6.1), in making a variation order in respect of a child support order, a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied
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- (a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and
- (b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.
Reasons
(6.3) Where the court awards, pursuant to subsection (6.2), an amount that is different from the amount that would be determined in accordance with the applicable guidelines, the court shall record its reasons for having done so.
Consent orders
(6.4) Notwithstanding subsection (6.1), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.
Reasonable arrangements
(6.5) For the purposes of subsection (6.4), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines.
AP Commentary: Reasonable arrangements for the support of a child have included upfront lump sum payments, forgoing equalization payments, transferring assets, and maintaining family residence for the recipient and child.
Priority to child support
(6.6) Section 15.3 applies, with any necessary modifications, when a court is considering an application under paragraph (1)(a) in respect of a child support order and an application under that paragraph in respect of a spousal support order.
Objectives of variation order varying spousal support order
(7) A variation order varying a spousal support order should
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- (a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;
- (b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
- (c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and
- (d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.
- (8) [Repealed, 1997, c. 1, s. 5]
- (9) [Repealed, 2019, c. 16, s. 13]
Limitation
(10) Notwithstanding subsection (1), where a spousal support order provides for support for a definite period or until a specified event occurs, a court may not, on an application instituted after the expiration of that period or the occurrence of the event, make a variation order for the purpose of resuming that support unless the court is satisfied that
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- (a) a variation order is necessary to relieve economic hardship arising from a change described in subsection (4.1) that is related to the marriage; and
- (b) the changed circumstances, had they existed at the time of the making of the spousal support order or the last variation order made in respect of that order, as the case may be, would likely have resulted in a different order.
Copy of order
(11) Where a court makes a variation order in respect of a support order, parenting order or contact order made by another court, it shall send a copy of the variation order, certified by a judge or officer of the court, to that other court.
AP Commentary: It is imperative to remember that a motion to change is not an appeal and that a court’s role in this process is not determine the correctness of the final order.
Courts are reluctant to change final orders on an interim/temporary basis except the circumstances are compelling.