Changing Support

Child support can be changed when there has been a material change in circumstances since the order was made. A material change is a significant change that, if known at the time, would likely have resulted in a different order. Common grounds for a material change include: a significant increase or decrease in the payor's income; a change in the parenting arrangement (for example, the child now spends more time with the payor); the child becoming a dependent beyond the age of majority (for example, starting university); the child ceasing to be a dependent; and a change in the child's special needs or Section 7 expenses.

To change a child support order, you can either reach an agreement with the other parent and file a consent order, or bring a Motion to Change in family court. A Motion to Change requires you to file a Notice of Motion to Change, an affidavit setting out the material change in circumstances, and updated financial disclosure. The other parent will have an opportunity to respond. If the change is agreed to, it can be made by consent without a hearing. If it is contested, a judge will decide. In some provinces, the support enforcement program can administratively recalculate support when income changes without requiring a court motion.

Retroactive child support is support that is ordered for a period in the past — before the motion to change was brought. Courts can order retroactive support when the payor failed to disclose an income increase, when the recipient was not aware of their right to seek an increase, or when the payor engaged in blameworthy conduct (such as hiding income). The Supreme Court of Canada has set out a framework for retroactive support in the DBS v SRG decision. Retroactive support is generally limited to three years before the date the recipient gave notice of their intention to seek a change, but courts have discretion to go further in cases of blameworthy conduct.

Child support terminates when the child is no longer a dependent. This typically happens when the child reaches the age of majority and is no longer in full-time education or is otherwise self-sufficient. To terminate support, the payor should bring a motion to change (or reach a consent agreement) — support does not automatically stop when the child turns 18 or 19. If the payor simply stops paying without a court order, arrears will accumulate. If the child has returned to full-time education after a period of independence, support may be reinstated. Courts look at the specific circumstances of the child, not just their age.

Section 7 expenses (special and extraordinary expenses) can also be changed when circumstances change. If childcare costs end because the child starts school, the Section 7 contribution should be adjusted. If a new extraordinary expense arises (for example, the child needs orthodontic treatment), it should be added. Both parents are required to disclose changes in Section 7 expenses and to seek the other parent's consent before incurring extraordinary expenses. If the parents cannot agree, either can bring a motion. Courts expect parents to communicate proactively about Section 7 expenses rather than presenting the other parent with a bill after the fact.

The best way to avoid disputes about child support is to review it annually. Both parents are required to exchange income information every year. If the payor's income has increased significantly, the recipient should request an increase. If it has decreased, the payor should request a decrease. Many parents include an annual review clause in their separation agreement or consent order. Keeping support current prevents the accumulation of arrears (if support is too high and the payor falls behind) and ensures the child benefits from the payor's increased income (if support is too low). Proactive communication is far less expensive than litigation.