Changing a Support Order in Family Court Where The Parties Can Agree

Part 1: What's in this booklet
    Do I really have to go to court?
    Some words that need defining
    Step 4: Prepare the court documents you need
            The Application
            The Request
            The Consent
            The Affidavit
            The Consent Order
    Step 5: Swear the Affidavit
    Step 6: Make three copies of the Documents
    Step 7: Notice of the application to the Family Maintenance Enforcement Program
    Step 8: File the documents
    Step 9: Obtain the Order
   
Step 10: Make copies of the order and Notify FMEP

Conclusion


Appendix of Forms
    Sample of a completed Application
    Sample of a completed Request
    Sample of a completed Consent
    Sample of a completed Affidavit
   
Sample of a completed Consent Order

 

Part 1: What's in this booklet

increase child or spousal support,

decrease child or spousal support, and

cancel arrears (support payments that have not been paid).

This booklet also includes:

a brief outline of the law that the court will apply when deciding whether to change a support order or cancel arrears, and

sample documents that you will need.

Do I really have to go to court?

Whether you have to go to court depends on whether the application to change support or to cancel arrears will be contested. Often (at least with respect to child support) parents can agree to a variation. Child Support Guidelines give parents a pretty good indication of what amount of support a judge will order to be paid if the case goes to court.

The procedure to change a support order when the parties agree is simple and does not require a trial. So, before applying to the court, it makes a lot of sense to talk to the other party to see if you can come up with an agreement. However, before agreeing to change a support order you should understand the law and the procedures involved.

If you cannot reach an agreement, the procedures to follow described in the booklet entitled "Changing a Support Order in Family Court When the Parties Cannot Agree." You may also want to watch the Legal Services Society's Family Law in BC videos. See the Legal Resource Centre and your Legal Services Society office or local library.

Before skipping to Part 3 (How to apply to change a support order by consent) of this booklet, you should read Part 2 (Some basic information about the law). It presents information about the law that applies to changing support orders.

Support: money paid by one person to another. Support is also called maintenance.

Original order : the order that you want to have varied.

Applicant : the person who is applying to change a support order or cancel arrears.

Respondent : the person who will have to respond to the application made by the applicant.

Payor : the person who is required to pay support.

Recipient : the person who is paid support.

Parties : the Applicant and Respondent or the Payor and Recipient.

Family Law Act (FLA) : the law passed by the British Columbia legislature that sets out the duty to pay support, when support can be varied and when arrears can be cancelled.

Provincial Court (Family) Rules : the rules that set out how applications are made in Family Court, what forms must be used, and what a judge can do in court.

Child Support Guidelines : the rules that a Family Court judge must apply when deciding how much child support should be paid. In British Columbia, the Guidelines are identical to the Federal Child Support Guidelines. The Child Support Guidelines include Tables, which help to figure out how much child support must be paid.

 

Part 2 : Some basic information about the law

The duty to support a child no longer automatically ends when the child reaches the age of 19. The law has changed. A parent can now be required to support a child beyond the age of 19 if the child is unable, because of illness, disability or other cause, to support themselves or to withdraw from being supported by their parents. So, for example, there are cases in which judges have required parents to support their child while attending university because the child would be unable to support themselves during this time.

Child support orders made under the Family Law Act have to meet the requirements of the Child Support Guidelines.

Child Support Guidelines

The Child Support Guidelines replace the "needs and means" test that was used in the past to make child support orders. One important change is that the parent who does not have custody of a child may still be required to pay support even if the parent with whom the child resides is well off financially.

The Child Support Guidelines use Tables to show the basic amount of child support that should be paid. There is a different Table for each province. The proper Table to use is the Table for the province in which the payor of child support lives. Different Tables for each province are necessary to account for the different amounts of taxes a person pays in each province of Canada.

Here is an excerpt from the British Columbia Table.

Annual
Income

Monthly Payments

Number of Children

 

1

2

3

4

6,700

0

0

0

0

10,700

97

118

135

151

27,800

247

416

549

   658

The Tables provide for a payor's annual income ranging from $6,700 to $150,000 and instructions about how to deal with a payor who has income in excess of $150,000.

A second reason is that the parties have agreed to an amount of support to be paid. A judge must find that the agreed on amount is a reasonable arrangement for the support of the child.

A judge can reduce the amount of support payable for a child if it would be unfair to require the amount in the Table to be paid because:

special provisions have already been made for the child in an order or agreement; or the parents have in an order or agreement divided up their debts or property in such a way that the child would benefit.

 

A fourth reason a judge might make an order for less than the Table amount is because that amount might cause "undue hardship." The Child Support Guidelines list some reasons a judge might find "undue hardship." These include:

the payor taking on an unusually high level of debt before the parents separated to support the family or earn a living, the payor having unusually high expenses to have access to the children (such as for travel or accommodation), or the payor having a duty under an agreement or order to support another child or any other person who is unable to support themselves due to illness or disability.

 

Despite finding that it would be an undue hardship for the payor to pay the Table amount, a judge will not reduce the amount of support if the judge finds that the payor's household would have a higher standard of living than the household of the recipient. The Child Support Guidelines include a formula in Schedule II for applying the "standards of living test."

Before the Child Support Guidelines came into force it was possible for parents to agree to the amount of support and the Court would almost always have made an order for support in the amount agreed upon. Now a judge will not make an order that is less than the amount set out in the Table, unless one of the permitted reasons for doing so is proven. To ensure that a judge follows the Child Support Guidelines, the law even requires a judge to give reasons in writing when making an order that is different from the amount required by the Table.

Increasing the amount of child support to be paid

The basic amount of support to be paid can also be increased if the Table amount is too little and will cause hardship for the child who is being supported.

In addition to requiring a parent to pay a basic amount of support, the Child Support Guidelines can require a payor to contribute to special or extraordinary expenses for the child. These expenses can be for:

child care expenses while the recipient works or is being trained for work or goes to school or is ill or disabled, the portion of a parent's medical and dental premiums that provides coverage for a child, health related expenses in excess of $100 annually per illness. The costs can be for orthodontic treatment, or for professional counselling by a psychologist, social worker, psychiatrist or any other professional person. The cost can also be for occupational therapy, speech therapy, prescription drugs, hearing aids, glasses, and contact lenses as well as other things, extraordinary primary, secondary, or other educational expenses, post-secondary school expenses, or extraordinary extracurricular activities expenses.

 

For a payor to be required to contribute to these expenses, the expenses must be reasonable and necessary in light of the needs of the child and the financial means of the payor. The Child Support Guidelines also say that special expenses should be shared by the parents in proportion to their income.

Spousal support orders

In British Columbia, spousal support may be based on "needs and means" or "compensation." Under the "needs and means" test, a judge would determine how much support should be paid by looking at several factors. First, the judge would note how much money the recipient needs. Second, the judge would note how much money the payor had left over to give to the recipient after paying reasonable living expenses. Under this basis a support order could be reduced if the needs of the recipient lessened. It could also be reduced if a recipient failed to become self-supporting within a reasonable period of time. The support order could be increased if the needs of the recipient grew or the ability of the payor to pay more improved.

A spousal support order can also be based on "compensation." That is, a recipient who took on the duties of running a household and raising the children can be paid compensation for the opportunity he or she lost to pursue his or her own career. A recipient can also be compensated for the other spouse's improved ability to earn an income, which resulted from that other spouse not having to look after the household and children.

The basis for changing a support order

The basic rule is that to change a support order, there must be a change of circumstance.

Examples of change of circumstance in child support cases

The three reasons why a Court will allow a child support order to be varied include:

where the amount of the child support order was made in accordance with the Guideline Table, any change in circumstances that would result in a different amount of support being payable. For example, the payor's income may have increased or decreased, or there may have been an increase or decrease in the needs of the child. However, a judge may refuse to change the original order if convinced that the increase or decrease in income is only temporary;

where the amount of child support was not made in accordance with the Guideline Table, any change in the condition, means, needs or other circumstances of either parent or of any child who is entitled to support. For example, the payor's income may have increased or decreased, or there may have been an increase or decrease in the needs of the child; and

where the original child support order was made before April 14, 1998. By giving a person the right to change a child support order because it was made before April 14, 1998, the government has made it easy for a payor or recipient to take advantage of the income tax rules that came into effect on May 1, 1997. Under these rules, the recipient no longer pays tax on the amount of child support received if the child support order was made after May 1, 1997. In addition, the payor is no longer allowed to deduct the amount paid for child support from their income for tax purposes.

If your child support order was made before May 1, 1997, you should look at the Child Support Guidelines and the current income tax rules to see if there is an advantage to you to change your existing order. In some cases a person will be better off with the amount they currently get for child support even if they have to pay taxes on that amount.

Examples of change of circumstance in spousal support cases

Orders based on "needs and means": If the spousal support order was based on the financial needs of the recipient and the ability of the payor to pay, then the key to changing a spousal support order is to show that there has been an important change in financial circumstances since the original order was made.

Compensation orders: It may be difficult to change orders based on compensation because they really amount to an order to repay the recipient an amount of money owed to the recipient for lost opportunity.

Decreasing the amount of support

Usually one or more of the following things have happened to change the financial circumstances since the support order was made:

the payor's ability to pay support has decreased and that decrease is more than temporary, the recipient's financial position has improved and that improvement is not just temporary, or the time has passed in which a recipient should have become self-supporting.

 

Increasing the amount of support

When a supported spouse wants to apply to increase support, usually one of the following things have happened to change the financial circumstances since the support order was made:

the paying spouse's ability to pay support has increased and that increase is more than temporary, or the supported spouse's financial position has worsened and that worsening is more than temporary.

 

The basis for cancelling arrears

The Family Law Act permits a judge to reduce or cancel arrears if it would not be grossly unfair to do so. Many cases have dealt with what is meant by "not grossly unfair." For example, one applicant was successful in having a judge cancel arrears because the parent who had custody not only refused access but told the payor that she did not want the payor to pay child support. Cases in which the payor lost a job but did nothing to attempt to change a support order to reflect reduced earnings are less successful.

More information about the law

The information in this booklet is believed to be correct as of the date it was published. However, the law is always changing. You should obtain legal advice to ensure that the information in this booklet is still accurate and that you understand exactly what your rights are. If you are eligible, you can obtain legal advice from some local legal aid offices. Click here for the address and telephone number of the Legal Services Society offices. If legal aid can't help you, they may be able to refer you to a free legal advice clinic. You can also obtain legal advice from a lawyer in private practice or through the Lawyer Referral Service. You may also wish to read "How to Find a Lawyer and Prepare for Your First Interview with a Lawyer."

You can view the Family Law Act by clicking here.

You can view the Provincial Court (Family) Rules by clicking here.

You can view the Child Support Guidelines and Tables by clicking here.

You can also obtain information on the Child Support Guidelines and order free child support publications by calling the British Columbia Child Support InfoLine (toll-free) 1-888-216-2211 or, in the Lower Mainland, call 604-660-2192.

Legal Services Society Law Line

Librarians at the Legal Resource Centre of the Legal Services Society can answer your legal information questions and tell you if there are any agencies in your area that can provide additional help. Law Line hours are 10 a.m. to 4 p.m., Monday to Thursday, and between 10 a.m. and 1 p.m. on Friday. In Vancouver, you can call 604-601-6100. To call from outside Vancouver, call Enquiry B.C. at 250-387-6121 (from Victoria) or 1-800-663-7867 (from outside Vancouver and Victoria) and ask for a transfer to 604-601-6100. You won't be charged for the call.

Legal Resource Centre

The Legal Resource Centre is a law library open to the public. Legal Resource Centre Librarians can help you with your legal information questions. The library is located at 200,  1140 West Pender Street, Vancouver, BC. Hours: 8:30am 4:30pm Monday to Friday.

Lawyer Referral Service

If you don't know a lawyer, try calling the Lawyer Referral Service. You will be given the name of a lawyer who specializes in the type of problem you have. One attractive feature of the Lawyer Referral Service is that you only pay $10 for advice given during the first half hour. The lawyer can give you some idea of what's involved in solving your problem, and you can decide if you want to hire this lawyer. Ask the lawyer what they will charge. In the Lower Mainland, call 604-687-3221; if you live outside Vancouver, call toll-free 1-800-663-1919. Ask to be referred to a lawyer who has experience with family law. Note that the Lawyer Referral Service is not available in all areas of the province.

Family Justice Centres

There are Family Justice Centres in 31 locations across the province. These centres offer a range of free services including information and referral, help filling out Family Court forms, and mediation and counselling services. Family Justice Counsellors are trained mediators who will offer to help you and your ex partner come to an agreement. If you do come to an agreement, they can help you prepare a consent order. They are not lawyers and don't represent either side of the dispute.

In communities where the court has been designated a Family Court Registry, people must meet with a Family Justice Counsellor before a court date is set.

You can find the location of some Family Justice Centres by clicking here. Family Justice Centres in other locations can be found by looking at the provincial government listings (the blue pages) of your phone book under Government of BC Family Justice Centres. If you can't find them call Enquiry B.C. at Lower Mainland: (604) 660-2421, Victoria: (250) 387-6121, All other areas of B.C. 1 (800) 663-7867 (toll-free).

Parenting After Separation Courses

Parenting After Separation is a free three-hour workshop offered in a number of locations throughout B.C. The workshop is intended to help parents understand the effects of separation on themselves and their children and how to recognize and meet the children's needs. You can find out more about these programs by calling your local Family Justice Centre. In some communities, people who want to go to court to change a family court order must first attend a Parenting After Separation course.

 

 

Part 3: How to Change a Support Order by Consent

A Change for Income Tax Purposes Only

You will not have to deal with the Court at all if the only reason you want to change a child support order is to take advantage of the change in the Income Tax Act (which allows the recipient of support to no longer pay income tax on the amount of support received). All you need to do is fill out and have both the payor and recipient sign a Form T1157 called "Election For Child Support Payments" and then file the form with the Canada Customs and Revenue Agency. Click here to obtain a copy of that form.

Applying to the Court to change a Support Order By Consent

Checklist

Here is a checklist of the things you must do to change a support order where the payor and recipient agree. Following the checklist, you will find details about how to do these things, including information about how to fill out the forms you need.

Click here to obtain a copy of the checklist that you can print.

Step 1

Agree on the amount of support to be paid. If the order to be varied is for child support also agree on the annual income of the payor and recipient.

Step 2

Obtain a copy of the support order that you want to change.

Step 3

Obtain copies of the payor's and recipient's most recent income tax return and notice of assessment or reassessment.

Step 4

Prepare the court documents you need. These include:

a) an Application 

b) a Request 

c) a Consent 

d) an Affidavit 

e) a Consent Order 

Step 5

Swear the Affidavit.

Step 6

Make three copies of the Documents.

Step 7

If the order being varied is a child support order, give notice of the application to the Family Maintenance Enforcement Program (if the child support order has been filed with that Program).

Step 8

File the original and 3 copies of the documents you collected and prepared in Steps 3 and 4 at the Family Court Registry where the order being varied was originally made. The Registry Clerk will return three stamped copies of your documents to you.

Step 9

If a judge is satisfied that your request is proper, the judge will sign your order. If the judge has some concern, you could be ordered to attend court so that the judge can obtain any explanations needed.

Step 10

Make three copies of the order. Notify the Family Maintenance Enforcement Program if a child support order has been varied.

An Explanation of Each Step:

Step 1

Agree on the amount of support to be paid. If the order to be varied is for child support also agree on the annual income of the payor and recipient.

Spousal support:

The law allows the parties to decide what is an appropriate amount of spousal support. If the parties agree, the Court will almost always confirm that agreement. Naturally, before consenting to a change in a spousal support order, each party should obtain legal advice to ensure that the change is prudent.

Child Support:

As you know from reading Part 2 of this booklet, the Child Support Guidelines limit the discretion of a judge when making a child support order. Thus, parents are not free to decide on the amount of child support that must be paid. Except where there is undue hardship, the amount of support is determined by the amount of the payor's income. The amount of support must be either the Table amount or at least satisfy a judge that it amounts to a reasonable arrangement to support the child. The amount can also be increased to pay for special expenses.

The Family Court Rules require parties who agree to change a child support order to also agree on the annual income of each party. In many situations it may not be too difficult for the parties to agree on the amount of their annual income and an amount of child support which a judge would confirm in a court order. But sometimes it may be difficult to figure out what a party's annual income is according to the Child Support Guidelines. It can also help you figure out an amount of support which is appropriate. You may also wish to obtain legal advice.

Arrears:

The law allows the parties to agree to cancel all or part of the arrears of support. If the parties agree, the court will almost always confirm that agreement. Naturally, before consenting to a cancellation of arrears, the recipient should obtain legal advice to ensure that the cancellation is prudent.

Step 2

Obtain a copy of the support order that you want to change.

You may have a copy of the support order you want to change among your important papers. If you do not, you can obtain a copy from the Family Court Registry in the city where the support order was made. You will have to go to the Court Registry in person. You may have to show some identification to prove who you are to the Court Clerk. A fee may be charged for photocopying the order.

Step 3

Obtain copies of the payor's and recipient's most recent income tax return and notice of assessment or reassessment.

If you do not have copies of your income tax returns or assessments you should request them from your nearest taxation office. The location of that office should be in the blue pages of your telephone directory under "Canada Customs and Revenue Agency."

Step 4

Prepare the court documents you need.

You will have to prepare five forms: an Application, a Request, a Consent, an Affidavit and a Consent Order. 

Click here to obtain blank forms you can use. You can also get free printed forms  from the Family Court Registry.

you will be able to view samples of completed forms. The forms refer to the case of Sharon Jones and Edward Jones. On September 25, 1997, Sharon obtained an order against Edward for support of their two children. At the time the order was made, Edward was earning $10,700 per year so the court ordered that he pay $118 per month for the support of the two children. Recently Edward got a new job and now earns $27,500 per year. Edward has agreed to pay the amount required by the Child Support Guidelines. That amount is $416 per month.  In addition Edward has agreed to contribute an additional $59.20 for special and extraordinary expenses (which is his proportionate share of monthly expenses totaling $76.42).

 

The Application (Form 2)

Click here to view a sample of a completed Application

Here is some information that may help you fill in this form:

Court file No.: Look in the top right hand corner of the original support order to see if there is a number. If there is, insert that number on the Application form. If not, leave the space blank. Don't be surprised if there is no number, since Family Court did not assign numbers to court files until recently.

Court Location: This is the city where the Family Court made the original order.

F.M.E.P. No.: If the original order was filed with the Family Maintenance Enforcement Program, and you have correspondence from that Program which shows their file number, insert that number. If you do not have the number, you can leave the space blank.

In the case between: Look at the original order. Insert the names of the parties as they appear in that order.

Filed by: This section is for information about the person who is applying for the order. Even if the parties are in agreement about what that order will be, one party has to be the applicant. That person will be the person who will benefit from the change in the order. The information requested is straightforward. Note that the form does not ask for the applicant's address. Rather it asks for an "address for service." So, if you want to keep your address confidential, you could use the address of a friend, parent or other person.

Notice to: This section is for information about the respondent. Again the information requested is straightforward.

and to: Tick the box [ ] in front of "Director of Maintenance Enforcement" if the original order was filed with F.M.E.P.

If the respondent receives social assistance, tick the box [ ] in front of "Minister." Note: If the respondent does receive social assistance, the respondent may have assigned his or her right to support to the Government. If such an assignment was made, the respondent could not consent to a change in the support order.

[ ] I ask...: Tick the box in front of the words "I ask that the attached order dated... be changed." After the word "dated" insert the date on which the original court order was made.

to the following: In the space provided after these words insert a phrase such as:

The respondent must pay to the applicant the sum of $416 per month for the support of the children, Catherine Jones born on April 19, 1990 and Robert Jones born on August 9, 1992, payable on the 1st day of each and every month, commencing January 1, 2000.

The respondent must pay to the applicant a sum of $59.20 per month for special expenses for the children, payable on the 1st day of each and every month commencing January 1, 2000 allocated as follows:

Child Nature of Special Expenses Amount

Robert Jones                     dental plan $ 6.60

                                        health related expenses $14.00

                                        s kating lessons $15.20

Catherine Jones                 dental plan $ 6.60

                                         dance lessons $16.80

[ ] I ask that arrears be cancelled or reduced as follows: If you have agreed to a reduction in arrears, insert a phrase such as:

"that all existing arrears be cancelled;"

or

"that the existing arrears be reduced from $16,400 to $5,000."

Since the order dated...was made, circumstances have changed as follows: Insert the basis for the change in the support order. For example:

There has been a change in financial circumstances of the respondent since the order was made. Either the respondent's income has gone up or down. For example: When the original support order was made the respondent's annual income was $10,700. The respondent's annual income is now $27,800.

or

Because the order you want to change was made before April 14, 1998 and you want to obtain an order in which the payor is required to pay the amount set out in the Child Support Guidelines.

or

To obtain a contribution to the special and extraordinary expenses related to the children.

or

Because a child has reached the age of majority and is self-supporting.

Dated: insert the date you filled out the form.

Signature: sign the form.

The Request (Form 18)

The Request form tells the judge what you are asking for. It is a very simple form to complete. 

Click here to view a sample of a filled in Request form .

Here is some information that may help you fill in this form:

Court File No., Court Location, F.M.E.P No.: Fill in these lines as you did on the Application.

In the case between: Again fill in these lines as you did on the Application.

Required: Put a tick mark in the box [ ] before the words "Desk Consent Order."

Dated: Insert the same date that you signed the Application.

at: Insert the name of the town or city where you signed the Application. For example: "Port Hardy" or "Kamloops."

Name of requesting party: Print the name of the applicant that you wrote on the Application.

Leave the rest of the form blank.

You will note that on the bottom of the form there is a place where a judge can tick a box to require you to attend court to explain why the order you want should be made. If a judge does tick that box, you will be advised by the court registry staff of the time and date when you must appear in court. Some reasons for requiring parties to appear in court when they are consenting to an order may include:

- the information on the forms is incomplete;

- a child support order is not in the amount of the Guideline Tables.

The Consent (Form 19)

The consent form sets out some of the basic information a judge needs to make an order. 

Click here to view a sample of a filled in Consent form

Here is some information that may help you fill in this form:

Court File No., Court Location, F.M.E.P No.: Fill in these lines as you did on the Application.

In the case between: Again fill in these lines as you did on the Application.

WE AGREE as follows: If you want an order to change a child support order you must insert what you agree to be the annual income of both the applicant and respondent. You must also insert the amount of support you are agreeing to.

WE CONSENT to an order as follows: Fill in the basic terms of the order you want. For example, the terms of a support order should include:

- who is to be the payor and recipient

- who the support is for (including birthdates, if the support is for children)

- the amount of support to be paid (if any)

- the date when the changed support payments will begin, and

- the date when subsequent payments must be made (if any).

An order reducing or cancelling arrears should indicate the new amount of arrears (if any) that will be owing to the recipient.

NOTE TO THE PARTIES: The form suggests you seek legal advice before signing the consent form. This is a good idea.

Approved and consented to: This is the place where the applicant and respondent sign the consent form and insert the date when they signed. Both signatures have to be witnessed. But they do not have to be witnessed by the same person or on the same date. The witness (or witnesses) must also sign the form and insert the date on which they signed the form.

The Affidavit (Form 17)

An Affidavit is a document which contains some of the evidence which a judge will use to decide whether you should succeed in your attempt to change a support order or cancel arrears. To change the amount of child support or cancel arrears by consent, the Affidavit should be made by the recipient. 

Click here to view a sample of a completed Affidavit.

- the amount of child support is not a Table amount. If it is not a Table amount include the reasons for the amount being less or more.

- special or extraordinary expenses are being sought (in which case, information should be set out in the Affidavit to show that the expenses are appropriate). Note: the Child Support Guidelines contain a formula for determining the amount that each parent should pay toward special or extraordinary expenses. Basically that formula says that special expenses should be shared by the parents in proportion to their income.

SWORN OR AFFIRMED: leave this area blank. It is to be used by the person who the recipient goes to swear or affirm that the contents of the Affidavit are true.

The Consent Order (Form 20)

The Family Court Rules require that you provide for the judge a draft of the order you want. 

Click here to view a sample of a completed Consent Order.

or

[Having set out the reasons for the order being different than the amount required by the Guideline Tables then include the following paragraph]:

THIS COURT ORDERS THAT:

pursuant to the Family Law Act and the Child Support Guidelines the insert the name of the payor shall pay to [insert the name of the recipient] the sum of $ insert the agreed upon amount per month for the support of the children insert the children's names and birthdates, payable on the insert the day of the month commencing insert the month, day and year and continuing so long as the child is a child as defined in the Family Law Act.

If the order you have agreed to requires the payor to contribute to special or extraordinary expenses you should include a paragraph which looks like this:

THIS COURT ORDERS THAT:

The payor must pay to the recipient the sum of fill in the agreed upon amount per month for special expenses for the children, payable on the fill in the day of the month, like the 1st day of each and every month commencing fill in  the month, day and year when payments will begin allocated as follows:

Child Nature of Special Expenses Amount

This booklet is meant to be a self-help tool. It does not replace the advice of a lawyer. It is impossible to cover every question you might have. You can contact the Law Line, the Lawyer Referral Service, or the Legal Services Society office nearest you for further assistance (refer to the section More information about the law in Part 2 above).  

Feedback

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When you receive a signed copy of the order from the Court, make three photocopies. If a child support order has been varied, send a copy of the new signed order to FMEP. One copy should be kept by the payor. A copy should also be kept by the recipient.

Conclusion

 Make three copies of the order. Notify the Family Maintenance Enforcement Program if a child support order has been varied.

Step 10

If a judge is satisfied that your request is proper, the judge will sign your order. If the judge has some concern, you could be ordered to attend court so that the judge can obtain any explanations needed.

Step 9

Take the documents and income tax returns, assessments and reassessments to the Court Registry in the city where the order you want to change was made. File the documents with the Registry Clerk. The Registry Clerk will keep the originally signed documents. The clerk will stamp the other three copies and return them to you. One copy should be kept by the payor. A copy should also be kept by the recipient.

File the original and 3 copies of the documents you collected and prepared in Steps 3 and 4 at the Family Court Registry where the order being varied was originally made.

Step 8

One copy of the Application, Request, Affidavit, Consent and Consent Order and income tax documents should be sent to the FMEP office where the child support order was filed. 

If the order being varied is a child support order, give notice of the application to the Family Maintenance Enforcement Program (if the child support order has been filed with that Program).

Step 7

You will now have the original documents plus three copies of these documents.

Take the documents you have prepared and both parties' most recent income tax return and notice of assessment and reassessment to a place where you can have them photocopied. The yellow pages has listings of such places. Again, you may wish to telephone first because some places charge much more than others for photocopying.

Make three copies of the Documents.

Step 6

Now that you have completed preparing the documents, the next step is to have the recipient swear or affirm that what you have written on the Affidavit is true.  Some legal aid offices have lawyers on staff who will swear the documents for you if you are eligible for legal aid. Be sure to telephone first. If you are not eligible for legal aid, a lawyer or notary can swear the Affidavit. Lawyers and notaries are listed in the yellow pages under Lawyers and Notaries Public. Telephone first to find out the fee for this service. Some lawyers and notaries charge much more than others.

Swear the Affidavit

Step 5

The order dated insert the month, day and year that the order being changed was made on, be varied by insert the word "reducing" or increasing" the amount of support payable to insert the name of the recipient by insert the name of the payor from insert the amount on the order being varied per month to insert the new amount that will be payable per month payable on the insert the day of the month day of each month commencing insert the month, day and year.

If the order will reduce or cancel arrears use the following paragraph:

THIS COURT ORDERS THAT

i nsert the name of the payor having been found to owe to insert the name of the recipient the sum of insert the amount of the arrears for unpaid support that accumulated pursuant to an order or agreement dated insert the month, day and year on which the order or agreement was made, that the sum owing be reduced to insert the new amount that will be owed.

If the order concerns spousal support use the following paragraph:

THIS COURT ORDERS THAT:

fill in the child's name / fill in the nature of the expense / fill in the payor's share

The payor and recipient in an order or agreement dated ________________divided up their property in such a way that the children would benefit. Specifically,______________________________________

____________________________________________________________

____________________________________________________________

or

The following special provisions for the children were made in an order or agreement dated:_______________________________________________________

_____________________________________________________________

_____________________________________________________________

or

The payor is paying off debts in the amount of $_____________ which were incurred while the payor, recipient and children were living together.

or

and the following person who because of illness or disability is unable to provide for themselves:___________________.

_______________________    ________________________

_______________________    ________________________

_______________________    ________________________

Name                                         Birthdate

 

The payor is required by an order or agreement dated ____________to pay $________________ for support of the following children:

Here is some information that may help you fill in this form:

Court File No., Court Location: Fill in these lines as you did on the Application.

In the case between: Again fill in these lines as you did on the Application.

Before the Honourable Judge: leave his area blank.

On the application of: insert the name of the applicant

[ ] without a hearing: tick the box. Then skip down to:

On the court being advised of the name and birthdate of each child is: fill in the names and birthdates of the children if the order you want deals with a variation of child support. Then skip down to:

The: insert whether the payor is the applicant or respondent. Then insert the name of the payor.

having been found to be a resident of: insert the province where the payor resides. Note that if the payor does not reside in British Columbia, you should not have used the Child Support Guideline table for British Columbia to calculate the amount of support for the children. You should use the table for the province in which the payor lives.

and to have an annual income of $: insert the amount of annual income the payor earns (as set out on the Consent Form).

[ ](if applicable) as agreed to by the parties: tick the box.

(if applicable) The: fill in this paragraph if the order will include payments for special or extraordinary expenses. If it does then after the word "The:" insert whether the recipient is the applicant or respondent, and the name of the recipient.

having been found to be a resident of: insert the province where the recipient resides.

and to have an annual income of $: insert the amount of annual income the recipient earns (as set out on the Consent Form).

[ ] as agreed to by the parties: tick the box.

At this point on the Consent Order form you have to insert paragraphs which contain the order you are agreeing to. To help you, there are several alternative paragraphs set out below. Choose the paragraphs that apply to your case. Fill in the information in each paragraph called for by the italics.

If the child support order you want is in the amount required by the child support table use the next paragraph:

THIS COURT ORDERS THAT:

pursuant to the Family Law Act and the (insert the name of the province where the payor resides) Child Support Table, (fill in the name of the payor) (payor) must pay to (insert the name of the recipient) (the recipient) the sum of (insert the amount of support agreed upon) per month for the support of the child(ren) insert the names and birthdates of the children, payable on the: insert on what day of the month support payments will be made (such as the 1st day of the month or the 15th day of the month) day of each month, commencing on insert the month, day and year support payments will start and continuing for so long as the child is a child as defined in the Family Law Act.

If the order you have agreed to requires the payor to contribute an amount which is different than the Table amount you must include the amount and the reason for not paying the Table amount.

THIS COURT ORDERS THAT

The amount of child support to be paid by the payor to the recipient is less than the Guideline Table amount because: then insert the reason for the order being less than the Table amount. For example

The cost of the payor exercising access to the children is very expensive when considering the payor's income . Those costs are:

Transportation $_______________

Accommodation $______________

Lost income $_________________

Other $_______________________

 

Here is some information about how to prepare an Affidavit.

Court File No., Court Location, F.M.E.P No.: Fill in these lines as you did on the Application.

In the case between: Again fill in these lines as you did on the Application.

I,: fill in the name of the recipient, the occupation of the recipient, and the recipient's address. If you want to keep your address confidential, you could use the address of a friend, parent or other person.

I make this affidavit in relation to an application by: insert the name of the applicant that was filled in on the application form.

for: fill in what kind of order is being sought. For example: "an order to change spousal support," " an order to change child support," or "an order cancelling or reducing arrears."

[ ] I am responding to the application: tick the box.

At this point the Affidavit form (Form 17) in the Family Court Rules is blank. It is blank so that you can fill in information that will help a judge decide whether the order you want should be granted. To make things easier for you, the sample Affidavit includes a number of potential paragraphs which may apply to your situation. If the paragraph applies, copy it on your own Affidavit and fill in the information needed.

You must include paragraphs relating to:

- the basis upon which you want the judge to change the support order

-the applicant's source of income and annual guideline income.

-the respondent's source of income and annual guideline income.

-the amount of support to be paid for spousal and child support in the order you are seeking and ( if applicable) the amount of arrears to be cancelled.

Your Affidavit must include additional paragraphs if:

When you complete the forms you can use a typewriter or you can fill in the forms by hand. If you fill in the forms by hand you must print legibly.

Information about how to prepare these forms will be given below.

To help make it easier for you to understand what to do,

 

Reducing the amount of child support

 to be paid

There are several reasons why a judge might not automatically make an order in the amount set out in the Tables. One reason is that each parent has the child in his or her care at least forty percent of the time in a year. This is called split custody.

If a payor has an income of $6,700 or less, and the payor is required to pay support for three children, the Table would indicate that the basic amount of support that should be paid monthly is $0. If the same payor had an income of $10,700, then the payor would be required to pay $135 monthly for the support of three children. And if the same payor had an income of $27,800, then that payor would be required to pay $549 monthly for three children.

 

Child support orders

 

Some words that need defining

 

This booklet will help you if you want to change a support order made in the Provincial Court of British Columbia (Family Court) and both the payor and recipient of support agree to the change. Specifically, this booklet will tell you how to apply to the Family Court to:

Part 2: Some basic information about the law

    Child Support Orders
    Child Support Guidelines
    Reducing the amount of child support to be paid
    Increasing the amount of child support to be paid
    Spousal support orders
    The basis for changing a support order
    Examples of change of circumstance in child support cases
    Examples of change of circumstance in spousal support cases
    The basis for cancelling arrears
    More information about the law
    Legal Services Society Law Line
    Lawyer Referral Service
    Legal Resource Centre
    Parenting After Separation Courses
    Family Justice Centres

Part 3: How to change a support order by consent      
   A Change for Tax Purposes Only
   Applying to the Court to change a Support Order By Consent
   Checklist
      Step 1: Agree on the amount of support to be paid
      Step 2: Obtain a copy of the support order that you want to change
      Step 3: Obtain copies of  income tax  returns

 

CONTENTS  

The information contained in Law Centre Publications is believed to be correct as of the date of each publication's last revision. However, the law is constantly changing. Legal advice should be obtained to ensure that the information contained in the publication you are using is accurate. If possible, you should get legal advice before changing your order.

If you use these materials, you agree not to hold The Law Centre, The Legal Services Society, The University of Victoria, The Law Foundation or any of their employees or other persons associated with these entities liable for any loss or injury you may sustain as a result of reading or relying upon the information contained in these publications. In addition you agree not to sell or charge a fee for providing copies of this publication to any person.

Prepared by Glenn Gallins, LL.B., LL.M. 
Revised December 2000, some updates 2016
A publication of the Law Centre Association of Victoria
Funded by the PLE Program of the Legal Services Society,
The Ministry of the Attorney-General, and The Department of Justice Canada
Copyright 2000, Legal Services Society of British Columbia

Page Last edited: 2016-09-28 15:13

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