Child Support Arrears Variation
Motion to change child support and child support arrears
Unlike ordinary debts (e.g. credit cards), child support arrears can be challenged and adjusted retroactively in certain cases. Statements of Arrears or demands for payment or collection of arrears are not the final answer on what is owed. Either party has the right to try to renegotiate arrears or to bring to the Court a Motion to Change child support. In a Motion to Change (also known as Motion to Vary) child support, the applicant requests the variation of child support and the arrears to more accurately reflect the situation of both or one of the parties over the period of time that the arrears accumulated.
This possibility to change child support arrears makes a support debt unlike any other judgment debt.
The basic law provides that a court of competent jurisdiction may make an Order varying, rescinding or suspending, prospectively or retroactively, on application of either or both former spouses.
For a court to make a variation order, the person seeking the change of child support - either an increase or a decrease - must show that there has been a material change in circumstances since the making of the existing order (as provided for in Child Support Guidelines).
An exception to this universal rule involves the Guidelines itself. Specifically, the introduction of the Guidelines in 1998 constitutes a material change in circumstances giving the right to either party to change a pre-Guideline Order.
Otherwise, any change in an existing Order requires the claimant to establish a material change in circumstances. Essentially, this involves a change in income, custodial arrangements, or cessation of dependency.
A variation in the order changes the child support enforcement as well. The support collection agency may only collect the varied arrears. All enforcement actions must abide by the terms of the new varied order.
It is fundamental in any variation application that the person seeking the change of a child support order must establish what the situation was at the time the order was made. Therefore, financial statements and income details, including income tax returns and notices of assessment for both parties from the time the original order was made, are the starting point. Thereafter, the income tax returns and notices of assessment and supporting documentation proving the change (eg. severance or termination documentation regarding a job change or loss) must be gathered together as basic preparation for the variation application.
Variation of Ongoing Support and Arrears Based on Annual Income Changes
Historically, the Courts have permitted changes to arrears on a motion to change or motion to vary based on appropriate evidence. Each case is decided upon a consideration of a number of factors. Increasingly, a Support payor’s failure to prove compliance with annual income disclosure requirements has resulted in rejection of the request to change the arrears.
The Ontario Child Support Guidelines require parties to child support orders or agreements to exchange support information annually . Serious financial consequences may arise for those who fail to comply.
Effective March 1, 2010 all support orders in Ontario require annual updating of income. Specifically all orders contain the following cause:
For as long as child support is to be paid, the payor and recipient, if applicable must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with section 24.1 of the Child Support Guidelines.
Section 24.1 of the Child Support Guidelines specify that the tax return for the most recent year, including any materials included in the return such as T4 slips and the Notice of Assessment or Reassessment from CRA MUST be supplied to the other party each year. There is no doubt that payors who do not comply with this requirement will be liable for retroactive child support based on annual income increases. Payor’s who experience an income reduction will not likely receive a retroactive arrears reduction on a motion to change if the annual income disclosure has not been provided.
Apart from these new mandatory requirements in Ontario, most separation agreements contain clauses which require the parties to annually exchange tax information and special expense details.
The risk of ignoring this annual disclosure requirement can be financially devastating.
Payors should register with the Support Information Exchange ( SIX ) www.yoursix.ca in order to protect themselves. SIX is designed to help parents organize, manage and comply with their child support responsibilities.