The topics in the Dial-A-Law series provide only general information on legal issues within the province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation. The purpose is to make you aware of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.
This topic will discuss the process you need to take to vary a Child Support Order issued by the Court. You are called the payer if you are making the child support payments and the parent who is paid is called the payee. Applications to change or vary child support are complex. You should consult with a lawyer to ensure that your application is complete and made to the appropriate level of Court.
A payor or payee may apply to change a child support order granted by the Provincial Court or the Court of Queen’s Bench. If your original application was in Provincial Court, you may bring your variation application in either Provincial Court or the Court of Queen’s Bench. If your existing order is from the Court of Queen’s Bench of Alberta, your variation application needs to be filed in the same court, that is, Queen’s Bench.
In Calgary, parties in both courts can access free mediation for child support issues by registering for a one hour hearing with a Dispute Resolution Officer (DRO). In Edmonton, the hearing is before a Child Support Resolution Officer (CSRO). Attendance at a DRO or CSRO is mandatory in most cases for Queen’s Bench for all child support actions in those cities, unless a justice has granted you or the other party an exemption.
Change in Circumstance
To have the Order changed or varied, you must show the Court that there is a significant change in the circumstances since the original Order was made. For example, the following situations may prove a significant change:
- A change in the number of children requiring child support
- A change in special expenses such as child care, health care needs not covered by existing insurance, or special educational expenses
- A change in employment that results in long-term changes of income for the payer.
Decreased Income of Payer
The most common ground to change the Child Support Order is when the income of the payer decreases substantially, and he or she is no longer able to make the support payments.
Please note that the change of income is not usually accepted as a ground for changing a Child Support Order. The payer must show the Court that his or her income has decreased to such a level that it is not possible to pay the amount of child support that was ordered by the Court. Also, the payer must show that their financial situation is not likely to improve. In other words, the variation Order will only be considered where the payer establishes on a balance of probabilities that he or she cannot pay and will not in the future be able to pay the arrears.
If the decrease in the payer’s income is only temporary, the Court may suspend enforcement of the Child Support Order or grant a temporary reduction in support until the payer’s financial situation improves. Once the financial situation of the payer improves, the suspended payments must be made in addition to the regular monthly payments. If the payer has not made the necessary payments to the Court, and is in arrears, the payer may apply to the Court to vary the ongoing support, to reduce or cancel the outstanding amount, or to establish a repayment schedule for the missed payments.
Application to the Courts for a Change in Circumstance
An application should be made to the Courts as soon as possible whenever there is a change in your circumstances. As long as the Court Order is in effect, the debt will continue to grow. Only the Court can vary the Order. Maintenance Enforcement does not have the authority to change the amount of the support to be paid. Do not ask them to change the Order. Their only role is to enforce the Court Order and pursue collection. You may make some arrangement with Maintenance Enforcement for a repayment schedule for an outstanding amount, but the ongoing support obligations must be paid. Maintenance Enforcement cannot cancel arrears.
Maintenance Enforcement may decide not to enforce the Order if there is a change in the child’s status that makes the child no longer eligible for child support payments. Sometimes there are conditions attached to the payer making child support payments, and those conditions are no longer met.
For example, if the Order stated that child support must be paid while the child attended school, and the child no longer attends school, then the Support Order will not be enforced. Also, the child may no longer live with the parent who receives the child support. Maintenance Enforcement would not likely enforce the collection of child support in these cases.
A payor cannot unilaterally change the amount of child support owed. If a parent stops payments or significantly reduces payments without making an application to the court, the other parent or the payee may be entitled to retroactive payments.
A “retroactive” order is an order that has a start date before the date the order is made, like an order made in July for child support payments beginning in March.
The Supreme Court of Canada in D.B.S. says that four factors should be taken into account when a court is asked to make a retroactive order:
- the reasons for the recipient’s delay in asking for an order updating the amount of child support;
- any misconduct on the part of the payor, such as hiding income, lying about income or pressuring the recipient not to ask for more support;
- any hardship suffered by the children as a result of the payor’s short support payments; and,
- any hardship that the payor might suffer if forced to pay a retroactive child support order.
Courts should consider these factors and the facts of each case in a “holistic” manner.
When a court is prepared to make a retroactive child support order, the start date of the order should be the date the recipient let the payor know that child support needed to be updated, to a maximum of three years from the date of the recipient’s application to court. However, if the payor has engaged in misconduct of some sort, then the start date can be as long ago as the date when the payor’s income changed.
Court applications in the Court of Queen’s Bench can be complicated and it is recommended that you hire a lawyer if you want to vary your Support Order. If you cannot afford a lawyer, then you may apply to Legal Aid for financial assistance. If you do not qualify for Legal Aid, it is possible to make an application on your own. The Family Law Information centre has self-help kits for a nominal fee. Their phone number in Calgary is 403-297-6600, and in Edmonton780-415-0404. For toll free access to these offices from elsewhere in Alberta, the government RITE line is 310-0000.