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 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 in the first place or determine whether 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 Other circumstances that could justify changing an order include situations where a child has moved out and withdrawn from the parent’s control.
As well, the child support Tables themselves are updated from time to time and the amended amounts could vary from previous tables. The Tables were last amended on December 31, 2011. If child support payments were based on previous Tables and using the updated tables would change the amount of child support, either parent could apply to court to have the amount of child support changed if they were unable to agree to this change.
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.
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 parent’s 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. Supreme Court of Canada
Determining the new amount
Generally speaking, when the court is asked to change child support payments they must use the Tables to determine the new amount. A different amount can be ordered if…
- paying or receiving the Table amount would cause undue hardship
- the child is over 18
- certain parenting arrangements are in place (shared or split custody)
- the person being asked to pay child support is a step-parent
- paying parent’s income is over $150,000 per year
The court can also order an amount other than the Table amount if there are special circumstances that benefit the child. Special circumstances could include situations where, for example, the paying parent has transferred the family home to the other parent for the benefit of the child and the parties agreed to lower child support payments because of the transfer of property.
An amount different than the Table amount could also be ordered if both parties agree to a different amount provided they can satisfy the court that the amount is reasonable in light of the Guidelines and the required financial information.
For more detailed information see Child Support.
When Child Support is No Longer Payable
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 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.
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. This 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
The Support Variation Project
Family Justice Services Branch offers information and services to help parents change an existing child support order or agreement registered in Saskatchewan. The Support Variation Project is available to eligible individuals with limited income and can help parties reach an agreement or provide some assistance in taking the matter to court. The Project does not, however, provide legal advice.