Changing Child Support
To protect the best interests of a child and ensure that child support payments are fair to all parties, child support payments may need to be adjusted from time to time. Child support agreements can be changed by agreement of both parties at any time.
Child support orders cannot be changed by a new agreement – a new order is required. If both parties agree about changing a child support order they can ask the court for a new consent order. If the parties disagree about the change the court can be asked to decide the matter.
A court will only order a change to child support under certain circumstances. It is helpful for parents with either a child support agreement or order to understand the factors a court will consider when asked to decide the matter. This information can help parties negotiate an agreement or decide to proceed with a court application to change an existing child support order.
When a Change May be Ordered
Where child support payments are based on the child support Tables, any change of circumstances that would result in a different child support order can justify a change. Types of changes that affect the Table amount include things like a change in the paying parent’s income or the fact that the child now lives with the paying parent at least 40% of the time. Other circumstances that could justify changing an order include situations where a child has moved out and withdrawn from the parent’s control.
Child support payments that were not determined in accordance with the Tables may be changed if there is a change in the means, needs or other circumstances of either parent or of the child.
When deciding on the new amount the court will consider the same factors that are considered when a child support order is first made.
Reporting Changed Income
Our laws place a responsibility on both parents to ensure that their children are receiving a proper amount of support. While a paying parent does not have a duty to automatically disclose income increases or increase child support payments, a court could order retroactive child support if the paying parent simply does nothing. A retroactive child support order adjusts the child support payments to what they should have been based on the increased income.
If the [paying parent’s] income rises and the amount of child support paid does not, there will remain an unfulfilled obligation that could later merit enforcement by the court… No child support analysis should ever lose sight of the fact that support is the right of the child… Even if the parents choose not to seek a variation of an order, depending on why (and how freely) this choice was made, the child may still have the right to receive support in the amount that should have been payable. The certainty offered by a court order does not absolve parents of their responsibility to continually ensure that their children receive the appropriate amount of support.
In deciding whether to a order retroactive variation of a child support the court will consider factors such as:
- Why the other party did not apply to change the child support order earlier.
- The behaviour of the paying party, including whether they hid an increase in income from the other party.
- The circumstances of the child.
- Any hardship making or not making the retroactive child support order could cause for the paying parent, the child or the receiving parent.
Child Support Recalculation Services
If a change to a child support order or an agreement is required because the income of the paying party has changed the recalculation service can be used as an alternative to going to court. Interim orders as well as final orders can be recalculated. This is a Government of Saskatchewan service that is free-of–charge. Only orders or agreements for the Table amount can be recalculated using this service; Non-Table amounts cannot be recalculated under the program. The program also cannot recalculate child support payments if:
- The order or agreement is for a child who is 18 or over (even if the Table amount was used).
- The court imputed income to the person paying support.
- The person paying support earns income from self-employment or farming or has rental income.
- It has been less than 6 months since the order or agreement was made or recalculated.
- There is already a court application to change the child support order.
- The person who is paying support is applying for the recalculation on the basis that they have no income (unless the other party agrees to a recalculation).
- Only one party resides in Saskatchewan (unless both parties agree to use the service).
Retroactive payments and special and extraordinary expenses cannot be recalculated using this service.
The person applying for the recalculation must provide as much contact information about the other party as possible. The service can take steps to find the other party but often the person asking for the change will have information the service does not have about where the other party lives. Both parties must be notified before a recalculation can be made.
The next step is for the paying party to provide current information about their income from all sources. As well, they must provide the service with their most recent tax return and their notice of assessment. The paying party must also complete a Financial Statement. If the paying party does not provide the information the service can request information from others such as an employer.
If the service cannot find or is not provided with current income information they can deem the paying party to have a certain level of income. This is done by adding 10 to 13 percent to the income that was used to calculate the original child support order or agreement. The percent that will be added depends on how long it has been since the order was made.
Once the service has the current income for the paying party, the Child Support Tables are used to calculate the new amount of child support. A copy of the recalculation is filed with the court that made the order. If the parties notify the service that they have a case with the Maintenance Enforcement Office, a copy of the decision will be sent to that office as well.
The recalculated amount then becomes what must be paid under the child support order. Payment of the new amount can be enforced in the same way as any other child support order.
Parties have 30 days to apply to court to vary or suspend the recalculation decision.
Dealing with Arrears
A parent who has failed to make child support payments as required may request that a court cancel or reduce the amount owing. The amount owing is referred to as arrears. A request to cancel or reduce arrears is made by an application to vary. The court will only consider this if there has been a significant and long lasting change that affects the paying parent’s ability to pay child support. The court will then look at:
- the needs of the child
- the paying parent’s ability to pay child support at the time they got behind
- the paying parent’s ability to pay now and in the future
- whether paying the arrears would cause undue hardship to the paying parent
- any explanation regarding a delay in asking for relief from arrears
- any unexplained delay in enforcing arrears that would prejudice the paying parent
[It is] well established law that in order for arrears to be rescinded, it must be demonstrated on a balance of probabilities that the payor cannot and will not in the future be able to pay the arrears….
~ Court of ~Queen’s Bench for Saskatchewan
When Child Support Ends
Sometimes a court order or an agreement will clearly indicate the point at which child support will no longer be payable. Other times the order or agreement may not state when it ends or will simply say it will continue as long as the child remains a child. In these cases, it will continue in effect after the child has turned 18 if the child is unable to support themselves because of something like a disability or full-time attendance at school.
In these situations the Maintenance Enforcement Office (MEO) will generally continue to collect support payments beyond the child’s 18th birthday if they are provided with adequate proof of the ongoing dependency of the child. If the parties disagree about whether child support is still required to be paid, the paying parent may need to apply to court to have the order changed.