Changing a Child Support Order After a Job Loss or Income Change

Child support in BC is tied to income, so when income changes the amount in your order or agreement may no longer fit. That works in both directions: a payor who has lost a job may need a reduction, and a recipient whose former partner now earns more may be entitled to an increase.

What surprises many people is that nothing changes until the order is changed. This article explains the legal test, the evidence that matters, and the options for updating child support, including when an application to court is needed.

The order stays in force until it is changed

A child support order or a filed agreement sets an amount that is payable until it is changed, suspended or ended. Losing your job does not reduce what you owe, and your former partner getting a raise does not increase what you receive. Until something formal happens, the original amount keeps running, and any shortfall becomes arrears.

In BC, child support is calculated under the Federal Child Support Guidelines, which the Province has adopted for orders under the Family Law Act. If you are unsure how the starting amount was worked out, our article on how child support is calculated in BC covers the table amount and special expenses.

The legal test for changing child support

Under section 152 of the Family Law Act, a court may change, suspend or terminate a child support order, and may do so going forward or back in time. Before it does, the court must be satisfied that at least one of these exists:

• A change in circumstances as defined in the child support guidelines.
• New evidence of a substantial nature that was not available at the previous hearing.
• A lack of financial disclosure by a party that was discovered after the last order.

For orders made under the federal Divorce Act, section 17(4) sets a similar threshold: a change of circumstances as provided for in the guidelines. Section 14 of the guidelines then says what counts. Where the amount came from the tables, any change that would result in a different order qualifies. In practice, a real change in either parent's income usually meets that test, but the court still looks at the evidence.

Which law applies matters. An order made in a divorce proceeding is varied under the Divorce Act; an order or agreement under the Family Law Act is changed under that Act. The court, the forms and some of the steps differ.

If you lost your job or your income dropped

A payor whose income falls can apply to reduce child support. Expect the court to look closely at why the income changed. Section 19 of the guidelines allows a court to impute income, meaning it can treat you as earning more than you do, in several situations, including where a parent is intentionally under-employed or unemployed. There is an exception where the lower income is required by the needs of a child or by the parent's reasonable educational or health needs.

That makes evidence important:

• Why the job ended. A termination or layoff letter, or records showing a business closed.
• What you are doing about it. Applications, interviews and offers, and any retraining.
• What you now earn. Employment insurance, severance, new pay stubs, and your most recent tax return and notice of assessment.

If you have already fallen behind, section 174 of the Family Law Act allows a court to reduce or cancel arrears, but only if it would be grossly unfair not to. The court can consider your efforts to comply and why you cannot pay. Applying early, rather than letting arrears build, generally leaves you with more options.

If the other parent now earns more

A recipient can apply to increase child support when the payor's income has gone up. The first problem is often knowing what the other parent earns. Section 25 of the guidelines gives a parent under a child support order a continuing duty to provide income documents, including recent tax returns and notices of assessment, on written request, not more than once a year. The response is due within 30 days if the person lives in Canada or the United States.

If disclosure is refused, the court can order it, and the guidelines allow a court to impute income to a parent who fails to provide income information when legally required to. Changes to special or extraordinary expenses, such as childcare or activities, can also be reviewed.

Agreements, interim orders and recalculation

• Agreements. Under section 148, a court may set aside or replace all or part of a child support agreement if it would make a different order applying the guidelines.
• Interim orders. Section 216 lets a court change an interim order if circumstances have changed or substantial new evidence has become available, considering, among other things, whether a trial is scheduled.
• The Child Support Recalculation Service. For some orders and filed agreements, BC's recalculation service can update the table amount each year from updated income information, without a court application. Under the regulation, it applies to orders and agreements connected to the Provincial (Family) Court registries, and a recalculated amount that differs enough from the current amount takes effect 31 days after the parties are notified. It does not suit every case, so check whether your order or agreement is eligible.

How a change is usually made

• By agreement. If you both accept the new income figures, you can record a new agreement or ask the court for an order by consent. A written agreement filed in court is enforceable like an order.
• By application. If you cannot agree, one of you applies to court with financial disclosure. In the Supreme Court, a notice of application to change an existing final order must be served personally on the other party.
• Timing. A court can make a change retroactive, but how far back it goes depends on the circumstances of the case. Waiting rarely helps either side.

Income changed? Get the child support order updated before arrears build

Our family lawyers can review your order or agreement, the income evidence on both sides, and the right route to change it, whether by agreement, recalculation or a court application.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.