Changing a Support Order in Family Court Where The Parties Cannot Agree

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


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.


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


CONTENTS

Part 1: What's in this booklet

Do I really have to go to court?

Some words that need defining

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 apply to change a support order

Checklist

Step 1: Obtain a copy of the order

Step 2: Obtain the necessary forms

Step 3: Show a change in financial circumstances

Step 4: Prove your current income

Step 5: Prepare the court documents

The Application (Form 2)

The Financial Statement

Step 6: Swear the Financial Statement

Step 7: Make four copies of the documents

Step 8: File the documents

Step 9: Notify the Family Maintenance Enforcement Program

Step 10: Serve the documents

Step 11: The Reply

Step 12: If a Reply is filed

Step 13: If no Reply is filed

The Affidavit of Personal Service

Step 14: If there is a counterclaim

Step 15: Prepare for court

Step 16: Appear in court

Step 17: Obtain the order

Step 18: Notify the Family Maintenance Enforcement Program

Part 4: How to oppose an application to change a support order

Checklist

Step 1: Forms you should receive

Step 2: Prove your income

Step 3: Complete the Reply

Respondent's own application

Step 4: Fill in the Financial Statement

Step 5: Swear the Financial Statement

Step 6: Make four copies of the documents

Step 7: File the documents

Step 8: Notification to appear in court

Step 9: Prepare for court

Step 10: Appear in court

Part 5: How to prepare for court

Know what options the judge has when dealing with your case

Collect your evidence 

Changing a child support order

Change in circumstances

Amount of child support

To change a spousal support order

To cancel arrears

Preparing a trial book

Part 6: Appearing in Court

Presenting your case

The order

Notify the Family Maintenance Enforcement Program

Conclusion

Appendix of Forms

Sample of a completed Application (Form 2)

Sample of a completed Financial Statement

Sample of a completed Reply (Form 3)

Sample of a completed Affidavit of Personal Service (Form 5)

Sample of Referral Request (Form 6) 

Feedback form for the Changing Support Orders in Family Court booklet

 


 

Part 1: What's in this booklet

This booklet will help you if you have to go to court to change a support order made in the Provincial Court of British Columbia (Family Court). Specifically, this booklet will tell you how to apply to the Family Court to:

increase child or spousal support,

decrease child or spousal support, and

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

This booklet will also tell you what to do if you want to oppose an application to change a support order or cancel arrears.

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,

sample documents that you will need,

a description of what to do when you are in court, and

things you might do after a judge makes a decision.

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 can agree you should refer to the booklet entitled Changing a Support Order in Family Court Where the Parties Can Agree.

If you cannot reach an agreement, the procedures to follow are in Part 3 (How to apply to change a support order) of this booklet. You may also want to watch the Legal Services Society's Family Law in BC videos. See the Legal Resource Centre and may be available at your Legal Services Society office or local library.

Before skipping to Part 3 (How to apply to change a support order) 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.

Some words that need defining

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 (FRA): 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

 

    Child support orders

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.

Since April 14, 1998, child support orders made under the Family Relations Act have had 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

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.

The Tables provide for a payor's 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.

Reducing the amount of child support to be paid

There are a 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.

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.

Another reason is that section 17(6.1) of the Family Relations Act allows a judge to 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 Relations 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) 5660-2421, 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 apply to change a support order

Checklist

Here is a checklist of the things you must do to change a support order when the payor and recipient cannot agree. Following the checklist, you will find details about how to do these things, including information about how to complete the forms you need.

Click here to print a copy of this checklist.

Step 1
Obtain a copy of the support order that you want to change.

Step 2
Obtain the court forms you will need. These forms include:

an Application to Change or Cancel an Order (Form 2),

two copies of a Financial Statement, and

a Reply (Form 3).

Step 3
If your application to change a support order is based on a change in financial circumstances, obtain documents that show your financial situation and the situation of the other party at the time the order you want to change was made.

Step 4
Obtain copies of the documents needed to prove your current income. The Financial Statement has a list of these documents.

Step 5
Prepare the court documents you need. These include:

an Application using Form 2, and

a Financial Statement.

Step 6
Swear the Financial Statement.

Step 7
Make four copies of the documents.

Step 8
File the original and three copies of the documents you collected and prepared in Steps 1 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.

 

In communities with mandatory Parenting After Separation Programs

The government has established several programs to assist people to resolve their family problems without going to court. In many communities, you may have to attend a Parenting After Separation Program before the Registry staff will accept your documents. Registry staff will give you a referral if the program is mandatory. The program is intended to help you understand the effect of separation on you and your children and to demonstrate effective ways to communicate and solve problems in parenting situations. You will receive a certificate of attendance that you must show the Registry staff when you file your documents.

In communities with Family Justice Registries

People who want to change a support order at court locations designated as "Family Justice Registries" are required to meet with a Family Justice Counsellor before a court date is set. Registry staff will refer you to a Family Justice Counsellor. They will tell you about their services and offer to mediate the dispute. At the meeting, you and the counsellor fill out a Referral Request that sets out that you attended the meeting and the results of the meeting. Click here to view a sample of the Referral Request. You must file the Referral Request with your other documents.

Step 9
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 10
Have the respondent served with the following documents:

a copy of the Application (Form 2) you filed at the Family Court Registry,

the blank Reply (Form 3),

a copy of your filed Financial Statement,

a blank Financial Statement, and

the documents needed to prove your current income (see Step 4).

Step 11
The respondent has 30 days to file a Reply.

Step 12
If a Reply has been filed, the Registry clerk will send you a copy of the Reply, the respondent's filed Financial Statement, and a notice of the time when you have to appear in court. The clerk must send you these documents within 21 days of receiving them from the respondent.

Step 13
If the respondent does not file a Reply:

Prepare an Affidavit of Personal Service (Form 5) and file it at the Family Court Registry.

Receive from the Registry clerk a notice of the time when you have to appear in court. Note: The respondent will not have been told of the court date if a Reply was not filed, so it is likely that when you appear in court the respondent will not be there.

Step 14
If the Reply contains a counterclaim (that is, a request for the court to make an order that the respondent wants), then you will have to complete and file at the Family Court Registry the original and three copies of a Reply to the counterclaim (use Form 3). The Registry clerk will return three stamped copies of your Reply to you.

Step 15
Prepare for court.

Step 16
Appear in court.

Step 17
Obtain the order.

Step 18
Notify the Family Maintenance Enforcement Program if the child support order has been varied.


Step 1: Obtain a copy of the order

You will need 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 Registry in person. You may have to show some identification to the Registry clerk to prove who you are. A fee may be charged for photocopying the order.

Step 2: Obtain the necessary forms

 

You need the following forms to start your court action:

An Application to Change or Cancel an Order (Form 2);

Two copies of a Financial Statement; and

a Reply (Form 3).

You may also need an Affidavit of Personal Service

Click here to obtain copies of these forms.

You can also get free printed forms, which include instructions for completion, from the Family Court Registry.

Step 3: Show a change in financial circumstances

If your application to change a support order is based on a change in financial circumstances, obtain documents that show your financial situation and the situation of the recipient at the time the order you want to change was made.

If you are applying to change a spousal support order, the legal basis for your application will be that there has been a change in the financial circumstances of the parties. A change in the financial circumstances of the parties could also be the basis for a change in a child support order. But, as you learned in Part 2 (Some basic information about the law) of this booklet, there could be other reasons, such as wanting an order in the amount set out in the Child Support Guidelines Table.

If you are applying to change a support order on the basis of a change in financial circumstances, you will need to show the financial situation at the time the original order was made. In the Family Court file, at the Family Court Registry, there should be a copy of the Financial Statements filed by the parties at the time the original order was made. It would be a good idea to obtain copies of those documents. (A fee may be charged for photocopying.) You will have to go the Family Court Registry yourself. Be sure to bring some identification.

Step 4: Prove your current income

You must obtain the documents listed on the Financial Statement to prove your current income. If you do not have copies of your income tax returns 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 "Government of Canada - Canada Customs and Revenue Agency."

Step 5: Prepare the court documents

You will have to prepare two forms: an Application and a Financial Statement. You can use a typewriter to complete the forms 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 is given below.

To help make it easier for you to understand what to do, you will be able to click onto samples of completed documents. The documents refer to the case of Sharon Jones and Edward Jones. On September 25, 1997, Sharon obtained an order against Edward for their two children. At the time the order was made, Edward was earning $10,700 per year so the court ordered that he pay $50 per month for each child. Recently Edward got a new job and now earns $27,500 per year. But Edward also has a new family to support. He doesn't feel he can pay the amount required by the Child Support Guidelines. Since Edward refuses to agree to the increase in child support Sharon wants, she has decided to apply to the court for the Guideline amount of $416 per month and an additional $59.20 for special and extraordinary expenses.

The Application (Form 2)

Click here to view a sample of a completed Application Form

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

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

Court Location: This is the city in which the Family Court is located where the original order was made.

FMEP No.: If the original order was filed with the Family Maintenance Enforcement Program, and you have correspondence from that program that shows their file number, write that number. If you do not have the number, you can leave the space blank.

In the case between: Look at the original support order. Write 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. 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." 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 the Family Maintenance Enforcement Program.

If the respondent receives social assistance, tick the box [ ] in front of Minister.

[ ] I ask ... : Tick the box in front of the words I ask that the attached order dated ... be changed to the following. After the word dated, write the date on which the original order was made.

to the following: In the space provided after these words write 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 first day of each and every month, commencing January 1, 2001.

The respondent must pay to the Applicant a sum of $59.20 per month for special expenses for the children, payable on the first day of each and every month commencing January 1, 2001, allocated as follows:

 

Child

Nature of
special expense

Amount

Robert Jones

Dental plan

$6.60

 

Health-related expenses

$14.00

 

Skating lessons

$15.20

Catherine Jones

Dental plan

$6.60

 

Dance lessons

$16.80

[ ] I ask that arrears of maintenance be cancelled or reduced as follows: If you want to apply to the court to cancel arrears tick the box in front of the words I ask that arrears be cancelled ...; then write 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: Write 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 respondents income has gone up or down. For example: When the original support order was made the respondents annual income was $10,700. The respondents annual income is now $27,800.)

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.

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

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

Dated: This is the date you filled out the form.

Signature: Sign the form.

The Financial Statement

Click here to view a sample of a completed Financial Statement.

The form is quite long (nine pages), and is similar to an income tax form. The people who designed the form tried to include a place to record every piece of information a judge might need in order to deal with support orders and apply the Child Support Guidelines. You will probably find that much of the form will not apply to you. Consequently the form may be easier to complete than you might think when you first look at it. In many cases, only the first page and Part 1 dealing with income will have to be completed.

The first page of the form consists of a place to identify:

the name of the parties involved in the lawsuit,

who is filling out the form,

what parts of the form have been filled out, and

whether the person who is filling out the form expects a change in financial circumstances.

The first page also includes a place to swear or affirm that the contents of the form are true.

The rest of the form is divided into three parts and three schedules.

Part 1 deals with income and must be filled out by both parties,

Part 2 deals with expenses, and

Part 3 deals with assets and debts.

Note that you have to complete Parts 2 and 3 only if the order you are seeking deals with:

spousal support,

a child support order in an amount different from that required by the Child Support Guidelines Tables,

 

special or extraordinary expenses for children, or

a child 19 years of age or older.

Schedule 1 deals with special or extraordinary expenses and does not have to be filled out unless the order being sought includes a claim for these expenses.

Schedule 2 and 3 are used if there is a request for a judge to find undue hardship when deciding on an appropriate amount of child support. If the order being sought is for child support in a Child Support Guidelines Table amount, this section does not have to be filled in.

Here is some information that may help you complete the first page:

Court File Number, Court Location, and FMEP Case Number: Complete these lines as you did on the Application.

In the case between: Again, complete these lines as you did on the Application.

I: Write your name

Address for service: You do not have to reveal your actual address if you want to keep it confidential. You just have to provide an address where court documents could be delivered to you. It could be the address of relatives, friends or others. Complete the rest of the information. Dont worry if you dont have a fax.

[ ] my income, including benefits : Tick this box.

[ ] my expenses, in Part 2: Tick this box only if you are dealing with spousal support or are asking for a child support order that is not in an amount set out in the Child Support Guidelines Tables.

[ ] my assets and debts, in Part 3: Tick this box only if you are dealing with spousal support or are asking for a child support order that is not in an amount set out in the Child Support Guidelines Tables.

[ ] I do not anticipate any significant changes in the information : Tick this box if it applies to you. Remember that if the basis for your Application to change the original order is because of a change in financial circumstances, that change must be more than temporary.

[ ] I anticipate the following significant changes : Tick this box if it applies to you and on the line below write down the change you expect to happen. For example: My Employment Insurance benefits will end on December 15, 2001, and if I do not find work I will be forced to live on social assistance. My income will decrease from $1,440 per month to the social assistance rate for a parent and two children.

Sworn or affirmed: Leave this area blank until you finish the rest of the form that applies to you.

Once you get past the first page, there are instructions included on the Financial Statement to help you fill it out. Here are a few more tips.

Part 1 Income

Information about your income and the income of the other party will be used:

to determine spousal support,

to apply the Child Support Guidelines Tables, and

to calculate a contribution toward special or extraordinary child expenses.

 

Questions 1 and 2 are easy for you to complete. Question 3 provides a list of the specific documents you must attach as evidence of your income.

Annual income

If your income this year will be the same as you reported on your income tax return last year, you can skip down to Total Income and put in the amount of your income on the line marked A. $______. You will find the figure at line 150 (Total Income) on your most recent income tax return form.

Otherwise, you will have to fill in the amount of income you receive each year for each type of income listed. Note that you must record gross annual amounts unless otherwise stated. The types of income listed are straightforward except for lines 10 and 17, which are explained below.

Line 10: Provides a place for you to list four different types of child support.

Children from this relationship: Refers to the relationship between the applicant and respondent. The term children from another relationship refers to children whose parents are not both the applicant and respondent.

Taxable amount: Refers to the fact that the recipient of child support has to pay tax on the amount of child support received unless the child support was required to be paid by a court order or separation agreement made after May 1, 1997, or the parties signed and filed a Form T1157 with the Canada Customs and Revenue Agency.

Note that you have to list all of the types of child support income you receive. However, only taxable income gets included in the column from which you will add up your total income.

Line 17: Provides a place to report net federal supplements. Only persons receiving an Old Age Security pension must report this source of income. The amount to be written on the Financial Statement is the amount that appears in box 21 on a T4A (OAS) tax form.

Now that you are at the end of the list, add up the amounts that you entered in the right-hand column and write the total on the line marked A. $_______.

Total Benefits: This part of the form itemizes other money or things that come to you. If you receive an allowance you will have to include that. If you get free rent, you should figure out how much a person would normally have to pay to rent the place you live in. If someone buys your food, figure out how much that food is worth. The total of the value of all these things for a year should be filled in on the line marked B. $________.

Adjustments to income

Again, you will see that some of the information requested in this section of the form is straightforward. This is particularly true if you are an employee or receive various forms of assistance from the government. The form assumes that people who earn an income from investments or by running their own businesses will have enough knowledge of the Income Tax Act, accounting, and the specific obligations relating to their business to complete the questions on the form that pertain to them. This booklet does not contain information about those things.

At Line 4 (Other employment expenses) some employee expenses can be deducted. A list of allowable deductions is provided in the instructions on the Financial Statement. These expenses are also described in Paragraph 1 of Schedule III of the Child Support Guidelines.

Other adjustments to income

Complete this section only if you are dealing with an order to change spousal support. If you are completing this section, the amount to write on each applicable line is the amount that you receive each year for the items listed.

Income summary

When the form requires information from line A it is referring to A. $_____. The same is true with B, C, D, and E.

Follow the directions for adding and subtracting the various amounts using a calculator, if you have one.

NOTE FOR PARTS 2 & 3

If you are only asking for the order to be changed to match the Child Support Tables, you dont need to complete these sections

 

Part 2 Expenses

Not everyone has to complete this part of the form. If you do have to fill it out, you may wonder how you could possibly know exactly how much you spend each year for each of the items listed. Some items are easy. Your payroll records will list how much you contribute to things like the Canada Pension Plan (CPP). Your credit card bills may show how much you spend on gas and car repairs. But what about how much you pay for toiletries, dry cleaning, or pet care? Most people dont keep specific records of these types of things. One way to figure out how much you spend annually for these types of things is to keep track of the amount you spend on them for a period of one month. Then multiply by twelve and see if that amount really reflects how much you spend. If it does not, use your best judgment to list an amount, which in your truthful estimation reflects how much you spend on that item per year.

You must add up all your expenses. The total should be written in on the line marked F. $______.

Part 3 Assets and Debts

This part of the form does not always have to be filled out. Here is information that may help you if you do have to complete this part.

Real estate equity: On this line, write the value of your home minus the amount of money owing on it. One fast way to get a value for the home is to call the municipal tax office and ask for the property assessment. The amount owing on your mortgage can be obtained at your bank.

Cars, boats, vehicles: On this line, write the value of all your vehicles minus the amount owing on it. Car values can be obtained by calling your public library and asking the librarian to look up the value in the blue book (Blue Book: Official Market Report (National Market Reports, Chicago)). The amount owing on car loans can be obtained at the bank that loaned you the money.

Annual Debt Payments

Credit card: The main information that is being sought in this section of the form is the cost to you of borrowing money for a year. For example, on the credit card line you should record the amount of interest that you paid during the year.

Balance owing: Write the amount of money that it would take to pay off all of your credit cards as of the date that you are filling out the form.

Date of last payment: Many people have more than one credit card. If you do, complete this line with the name of the creditor and the date of the last payment for each card. For example: Visa: Dec. 2, 2000; MasterCard: Nov. 29, 2000.

Reason for borrowing: There are two ways to interpret what is being asked for here. One way is what did you use the money for? Your answer might be household items, gas and clothes. Another interpretation is why couldnt you pay for the things you bought without borrowing? The answer then might be because I dont earn enough to pay for the things my family needs to live, or I incurred unexpectedly high expenses for car repairs. It would be best if you can fit in both answers in the small space provided. If not, briefly list what you bought.

The rest of the types of borrowing can be recorded in the same way. Then add up the amounts you put down for interest payments for each type of borrowing and put that amount on the line marked H. $______.

Schedule 1 Special or extraordinary expenses

This section does not have to be completed unless the order being sought includes a claim for these expenses. If a claim is being made for special or extraordinary expenses, complete the form as follows.

Name of child: In the boxes across the top of the form write the name of each child for whom the expenses are being paid.

Gross and Net: You will note that some of the types of expenses (child care expenses, health related expenses, and post secondary education expenses) ask you to note a gross amount and a net amount. If the order being sought seeks a contribution to one of these types of expenses, then you should write on the gross line the total amount that you will have to pay for the expense. For example, if the cost of a child going to college is $5,000 for tuition and books you would write that figure on the gross line. If the child obtained a scholarship for $1,000, that amount would be deducted from the $5,000 to arrive at the net amount. On the net line you would write $4,000.

Subtract contributions from child: Write down how much the child pays toward the cost of the expense. If the child earned $2,200 in the summer, and is applying that amount to the cost of going to college, write that amount on this line.

Total: Write the Net amount minus the childs contribution.

Give details: List the source and amount of money, tax deductions, or credits you receive toward paying each type of expense. Again, using the post secondary education expenses as an example, you might write:

Post secondary expenses:

1. Robert Jones received a scholarship from the University of Victoria for $1,000.

2. I received a tax credit in the amount of $585 as a tuition and education amount transferred from a child ($3,440 on line 324 of my tax return x 17%).

Schedule 2 Undue hardship

Schedule 2 is used if there is a request for a judge to find undue hardship when deciding on an appropriate amount of child support. If the order being sought is for child support in the Child Support Guidelines Table amount, this section does not have to be filled in.

Schedule 2 is divided into the types of expenses that would support a claim that paying the Guideline Table amount for child support would cause undue hardship. To complete the schedule, all you have to do is decide which of the five categories of expenses applies to you; then write the information asked for on the form. For example, if the claim for undue hardship were based on unusually high expenses for exercising access to a child, you would list under Details of expense the monthly amount you pay for:

Transportation         $______________

Accommodation $______________

Lost income  $______________

Other   $______________

In the right hand column under the words Monthly Amount you would write the total monthly cost to you for exercising access. If you live at some distance and do not exercise access frequently, calculate how much you spend yearly and divide by 12 to figure out the amount to write on each line.

Schedule 3 Income of other persons in household

Schedule 3 is used if there is a request for a judge to find undue hardship when deciding on an appropriate amount of child support. If the order being sought is for child support in the Child Support Guidelines Table amount, this section does not have to be filled in.

Schedule 3 is straightforward. It asks you to record the annual income of members of the household of the person claiming undue hardship. Who is a member of the household? According to the Child Support Guidelines, household means a spouse and any of the following persons residing with the spouse:

(a) any person who has a legal duty to support the spouse or whom the spouse has a legal duty to support;

(b) any person who shares living expenses with the spouse or from whom the spouse otherwise receives an economic benefit as a result of living with that person, if the court considers it reasonable for that person to be considered part of the household; and

(c) any child whom the spouse or the person described in paragraph (a) or (b) has a legal duty to support.

The next question is: What is annual income? To calculate a persons annual income you should use a copy of Part 1 of the Financial Statement form. Once you calculate the annual income you should write that amount on a line next to the persons name that you wrote down on Schedule 3.

Step 6: Swear the Financial Statement

Now that you have completed preparing the Financial Statement, the next step is to swear or affirm that what you have written on the Financial Statement 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 Financial Statement. 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.

Step 7: Make four copies of the documents

Take the documents you have prepared and the documents that prove your income that you obtained in Step 4 to have them photocopied. To find such a place, look in the yellow pages under Copying and Duplicating Service. Again you may wish to telephone first, because some places charge much more than others for photocopying.

Step 8: File the documents

File the original and three copies of the Reply, Financial Statement, and other documents that prove your income at the Family Court Registry where the order being varied was originally made.

Take the documents you collected in carrying out Steps 1 and 4 to the Family 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 one set of the documents. The clerk will stamp the three other copies and return them to you.

In communities with mandatory Parenting After Separation Programs

   The government has established several programs to assist people to resolve their family problems without going to court. In many communities, you may have to attend a Parenting After Separation Program before the Registry staff will accept your documents. Registry staff will give you a referral if the program is mandatory. The program is intended to help you understand the effect of separation on you and your children and to demonstrate effective ways to communicate and solve problems in parenting situations. You will receive a certificate of attendance that you must show the Registry staff when you file your documents.

In communities with Family Justice Registries

      People who want to change a support order at court locations designated as Family Justice Registries are required to meet with a Family Justice Counsellor before a court date is set. Registry staff will refer you to a Family Justice Counsellor. They will tell you about their services and offer to mediate the dispute. At the meeting, you and the counsellor fill out a Referral Request that sets out that you attended the meeting and the results of the meeting. Click here to view a sample of the Referral Request. You must file the Referral Request with your other documents.

 

Step 9: Notify the Family Maintenance Enforcement Program

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

A copy of the documents you filed at the Family Court Registry should be sent to the Family Maintenance Enforcement Program office where the original child support order was filed.

Step 10: Serve the documents

Have the respondent served with the following documents:

a copy of the Application (Form 2) you filed at the Family Court Registry, the blank Reply (Form 3), a copy of your filed Financial Statement, a blank Financial Statement, and the documents needed to prove your current income (see Step 4).

The Family Court Rules say that the documents can be served on the respondent by leaving a copy of them with the respondents lawyer (if the respondent has a lawyer). Otherwise, the documents must be given to the respondent by a person who is 19 or older. The applicant is not allowed to give the documents to the respondent.

A process server or a friend can give the documents to the respondent for you. Look in the yellow pages under Process Servers. To save money you should telephone several process servers to get quotes about how much it will cost to have the documents served because prices vary. You should also confirm that the process server will provide you with a sworn Affidavit of Personal Service (Form 5). An Affidavit of Personal Service is a document that proves to the Court that the documents were served on the respondent.

The person who is going to serve the documents should be given two copies of each document. They should compare the two copies of each document to ensure that they are the same. This is because one copy will be given to the respondent to be served and the second copy will be attached to an Affidavit of Personal Service. In the Affidavit of Personal Service the person serving the document will be swearing that they gave copies of the documents to the respondent. Unless they first compare the documents, they will not know that the copies of the documents attached to the Affidavit of Personal Service are the same as those given to the respondent.

If the person delivering the documents does not already know the respondent, they should confirm that the documents are being given to the right person. This can be done simply by asking the name of the person being given the documents.

After leaving a copy of each document with the respondent to be served, the person serving the document must make a note of the time, date, and place (street address, city, and province) where the documents were served. This information will be needed if you must prepare an Affidavit of Personal Service as part of Step 13. Note: An Affidavit of Personal Service will only be needed if the respondent does not file a Reply.

Step 11: The Reply

After being served with the documents, the Family Court Rules allow the respondent 30 days to file a Reply. The next step that you must take will change depending on whether or not a Reply is filed.

Step 12: If a Reply is filed

If a Reply has been filed, the Family Court clerk will send you a copy of the Reply, the respondents filed Financial Statement, and a notice of the time when you have to appear in court.

Step 13: If no Reply is filed

If the respondent does not file a Reply: prepare an Affidavit of Personal Service and file it at the Family Court Registry, and

receive from the Family Court clerk a notice of the time when you have to appear in court. Note: If no Reply has been filed, the respondent will not have been told of the court date, so it is likely that when you appear in court the respondent will not be there.

 

The Affidavit of Personal Service

If you had a process server deliver the documents to the respondent, the process server should provide you with the affidavit you will need. If the documents were served by someone else, you will have to prepare the affidavit.

Click here to view a sample of a completed Affidavit of Personal Service (Form 5).

To complete the form, write the name and address of the person who delivered the documents. Write the date and the address (including the province, which probably will be B.C.) where the respondent was given the documents.

Each document should be labelled with a different exhibit letter. For example, on the top of the Application you should write the words Exhibit A. Next to the word Exhibit A on the affidavit you should write Application (that is, the name of the document). To make it easier for you, the Affidavit of Personal Service form lists the exhibits that are normally used to prove your income.

The person who delivered the documents will have to attend a notarys office or a lawyers office to swear the Affidavit of Personal Service. They must bring to the notarys office or the lawyers office a copy of each document served. A fee will be charged for swearing the Affidavit of Personal Service.

Step 14: If there is a counterclaim

If the reply contains a counterclaim (that is, a request for the court to make an order that the respondent wants), then you will have to complete and file at the Family Court Registry the original and three copies of a Reply to the counterclaim (Form 3).

Instructions about how to prepare a Reply form are found in Part 4 (How to oppose an application to change a support order) of this booklet.

Step 15: Prepare for court

See Part 5 (How to prepare for court) of this booklet.

Step 16: Appear in court

See Part 6 (Appearing in court) of this booklet.

Step 17: Obtain the order

See The order in Part 6 (Appearing in court) of this booklet.

Step 18: Notify the Family Maintenance Enforcement Program

See Notify the Family Maintenance Enforcement Program in Part 6 (Appearing in court) of this booklet.

 

Part 4: How to oppose an application to change a support order

Checklist

Here is a checklist of the things you must do to oppose an application to change a support order or cancel arrears. Following the checklist, you will find details about how to do these things, including information about how to complete the forms you need.

Click here to print a copy of this checklist.

Step 1
When you receive a copy of the Application to Change or Cancel an Order (Form 2), you should also receive a blank Reply (Form 3) and a blank Financial Statement.

Step 2
Obtain the documents you will need to prove the amount of your income.

Step 3
Fill in the Reply (Form 3). Decide whether you wish to make a counterclaim. If you do, complete the counterclaim portion of the Reply form.

Step 4
Fill in the Financial Statement.

Step 5
Swear the Financial Statement.

Step 6
Make four copies of the documents.

Step 7
File the original and three copies of the Reply, Financial Statement, and other documents that prove your income at the Family Court Registry.

In communities with mandatory Parenting After Separation Programs

   The government has established several programs to assist people to resolve their family problems without going to court. In many communities, you may have to attend a Parenting After Separation Program before the Registry staff will accept your documents. Registry staff will give you a referral if the program is mandatory. The program is intended to help you understand the effect of separation on you and your children and to demonstrate effective ways to communicate and solve problems in parenting situations. You will receive a certificate of attendance that you must show the Registry staff when you file your documents.

In communities with Family Justice Registries

      People who want to change a support order at court locations designated as Family Justice Registries are required to meet with a Family Justice Counsellor before a court date is set. Registry staff will refer you to a Family Justice Counsellor. They will tell you about their services and offer to mediate the dispute. At the meeting, you and the counsellor fill out a Referral Request that sets out that you attended the meeting and the results of the meeting. Click here to view a sample of the Referral Request. You must file the Referral Request with your other documents.

Step 8
The Family Court clerk will send you a notice of the time and date to appear in court.

Step 9
Prepare for court.

Step 10
Appear in court.

Step 1: Forms you should receive

When you receive a copy of the Application to Change or Cancel an Order (Form 2), you should also receive a blank Reply (Form 3) and a blank Financial Statement.

The Family Court Rules say that the applicant must give the respondent a blank copy of the Reply form and Financial Statement at the same time the respondent is given a copy of the Application. If you are not given a copy of these forms, click here to obtain them, or go to the Family Court Registry and obtain a copy of each form. Do not delay. The forms may take some time to complete. You only have 30 days from the time you receive the Application to file your completed Reply and Financial Statement. If you do not complete and file these documents in time you will not be told when you have to appear in court. The applicant will then be able to proceed in your absence and, in all likelihood, will succeed.

Step 2: Prove your income

You must obtain the documents listed on the Financial Statement to prove your current income. If you do not have copies of your income tax returns 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 Government of Canada - Canada Customs and Revenue Agency.

Step 3: Complete the Reply          

Click here to view a completed Reply form.

Decide whether you wish to make a counterclaim. If you do, complete the counterclaim portion of the Reply (Form 3).

Here is some information that may help you fill in the Reply.

Court File No.: Look in the top right hand corner of the Application to see if there is a number. If there is, write that number on the Reply form. If not, leave the space blank. Dont be surprised if there is no number, since the Family Court Registry did not assign numbers to court files until recently.

FMEP No.: If the original order was filed with the Family Maintenance Enforcement Program, there should be a number on the Application form. Write that number. Leave the space blank if there is no number.

Court Location: This is the city in which the Family Court was located where the original order was made.

In the case between: Look at the Application. Write the names of the parties as they appear on that form.

To and From: This section is for information about the parties. The information should be on the Application. If the information on the Application is incorrect, fill in the correct information on the Reply. For example, if your address is incorrect on the Application, fill in your correct address on the Reply.

Agreement with application:

I agree with the request(s) of the applicant for: Leave this area blank if you do not wish to agree to what the applicant is asking for in the Application.

If you decide you want to consent to the support order being varied as requested by the applicant, you can tick the appropriate box (that is, the box in front of maintenance for the child or the box in front of spousal maintenance).

If you want to consent to a reduction in arrears, tick the box in front of other order (specify). After the word specify fill in a reduction of arrears.

I wish to make the following comments ... : If you are agreeing to a variation in support but think some issues must be dealt with by a judge, list those issues. For example, you might say that support for a child should not be in the Guideline Table amount because it will cause you undue hardship.

Disagreement with application:

I disagree with the request(s) of the applicant for: Tick the boxes in front of the requests you are opposing.

I disagree because: The best reasons are that the applicant should not legally be entitled to the change he or she wants. To be legally entitled, the required circumstances should exist. Those circumstances are set out in Part 2 (Some basic information about the law) of this booklet dealing with what must be proven to get the order requested. You may wish to read that section now; then write your reasons for opposing the order on the lines provided.

Respondents own application

I wish to make an application for the following: It is possible to join other issues to the lawsuit started by the applicant. The respondent could seek an order dealing with:

custody,

guardianship,

access,

support for children in the care of the respondent,

support for the respondent,

an order cancelling arrears, and

a restraining order.

Before you apply for any of these orders, you should get some legal advice.

To apply for an order, tick the box in front of the type of order you want a judge to make. For a restraining order, tick the box in front of the words other order, and after the word specify write the words restraining order.

1. Children: If you want to apply for an order for custody, access, or child maintenance, fill in the names and birthdates of the children on the lines provided on the form.

I am asking for access to the child(ren) as follows: Here you would write the amount of access you want.

2. Maintenance: This line asks you to write the applicants annual income. That amount should be disclosed on the applicants Financial Statement that should have been given to you. If you think the amount is different than that disclosed on the Financial Statement, fill in what you think the correct amount should be and the reason you think so.

3. Restraining Order: If you want a restraining order, write down what the applicant does that worries you.

Dated: Write the date you filled out the form.

Signature: Sign the form.

Step 4: Fill in the Financial Statement

For instructions about how to complete the Financial Statement read Part 3 (The Financial Statement) of this booklet.

Step 5: Swear the Financial Statement

Now that you have completed preparing the Financial Statement, the next step is to swear or affirm that what you have written on the Financial Statement 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 Financial Statement. 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.

Step 6: Make four copies of the documents

Take the documents you have prepared and the documents that prove your income that you obtained in Step 2 to have them photocopied. To find such a place, look in the yellow pages under Copying and Duplicating Service. Again, you may wish to telephone first, because some places charge much more than others for photocopying.

Step 7: File the documents

File the original and three copies of the Reply, Financial Statement, and other documents that prove your income at the Family Court Registry where the order being changed was originally made.

Take the documents you collected in carrying out Steps 2 and 3 to the Family 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 one set of the documents. The clerk will stamp the three other copies and return them to you.

In communities with mandatory Parenting After Separation Programs

   The government has established several programs to assist people to resolve their family problems without going to court. In many communities, you may have to attend a Parenting After Separation Program before the Registry staff will accept your documents. Registry staff will give you a referral if the program is mandatory. The program is intended to help you understand the effect of separation on you and your children and to demonstrate effective ways to communicate and solve problems in parenting situations. You will receive a certificate of attendance that you must show the Registry staff when you file your documents.

In communities with Family Justice Registries

      People who want to change a support order at court locations designated as Family Justice Registries are required to meet with a Family Justice Counsellor before a court date is set. Registry staff will refer you to a Family Justice Counsellor. They will tell you about their services and offer to mediate the dispute. At the meeting, you and the counsellor fill out a Referral Request that sets out that you attended the meeting and the results of the meeting. Click here to view a sample of the Referral Request. You must file the Referral Request with your other documents.

 

 

Step 8: Notification to appear in court

The Family Court clerk will send you a notice of the time and date to appear in court.

The Family Court Rules require the registry clerk to serve a copy of your Reply on the applicant and then notify you of the date you have to appear in court.

Step 9: Prepare for court

Turn to Part 5 (How to prepare for court) of this booklet for details about how to prepare for court.

Step 10: Appear in court

Proceed to Part 6 (Appearing in court) of this booklet for details about how to conduct your trial.

Part 5: How to prepare for court

To be properly prepared for your court appearance, you need to:

     know what options the judge has when dealing with your case,

     collect the evidence you may need,

     prepare a trial book, and

     become familiar with what happens in court.

It may help you to watch the video Making Your Case: The Family Court Process, which was prepared to go along with this booklet. It contains a good example of how to prepare and present a case in court. The video is available from the Legal Resource Centre and may be available at your Legal Services Society office or local library.

Know what options the judge has when dealing with your case

As noted above, if the respondent does not file a Reply, the respondent will not be notified of the trial date. Therefore, it is unlikely that the respondent will appear in court. In this case the judge has several options. The judge could:

     adjourn the case and set a trial date,

     issue a summons to require the respondent to attend court on a specific date,

     proceed to hear the case. The judge could infer (by the absence of a Reply) that the respondent is consenting to the order being sought by the applicant, or

     the judge could decide on what the income of the respondent is based on your evidence. Once the judge decides what the income of the respondent is, the judge could make an order to change support.

If the respondent did file a Reply and appears in court, a judge could:

     adjourn the case and set a trial date (this may occur if there is not enough time to hear your case on the day you first go to court because there are too many other cases to be heard, or because the respondent has not filed a Financial Statement),

     if the respondent has failed to file a Financial Statement:

     order that the respondent file a Financial Statement, or

     hear evidence and decide on what the judge thinks the respondents income is, or

     conduct a trial and make an order.

Collect your evidence

To succeed in court you need to present evidence to a judge about all the things the judge needs to know about to make the order you want. The things the judge needs to know are set out in the Family Relations Act, the Child Support Guidelines, and the Family Court Rules. You can read a summary of the important points of the law in Part 2 (Some basic information about the law) of this booklet. Since your case deals with changing a support order or cancelling or reducing arrears, the types of evidence will be limited to financial matters. To help you, listed below are the things you must give evidence about and the types of evidence that may be useful.

Generally speaking your evidence may include:

     telling the judge what you have personally seen or done,

     telling the judge what the respondent told you,

     asking the respondent to admit certain things when the respondent is on the witness stand and giving evidence at trial,

     having witnesses tell the judge what they have personally seen or done,

     having witnesses tell the judge what they heard the respondent say,

     documents relevant to the case, and

     photographs.

 

Changing a child support order

First, you must prove to the court that there has been change in circumstances (see The basis for changing a support order in Part 2 (Some basic information about the law) of this booklet). Then you must show how the Child Support Guidelines apply to your case.

Change in circumstances

There are three possibilities.

Possibility one:

The original order was made before April 14, 1998.

Evidence:

The court will have a copy of your original order, because you filed it when you filed your documents at the Registry. Your evidence would consist of you saying to the judge The basis for my claim is that there has been a change of circumstance in that the order I want to change was made before the Child Support Guidelines came into force.

Possibility two:

(a)     The child support order was made in accordance with the Child Support Guidelines Tables, and

(b)     a change in circumstances occurred that would result in a different amount of support being payable.

Evidence:

(a) The fact that the original order was made in accordance with the Child Support Guidelines Tables will be clear from the words in the original order. It will refer to the payors annual income and should include the amount payable. There should be no reference to a reason why the court ordered an amount of child support different from the Child Support Guidelines Table.

(b) Evidence of change in financial circumstances: The change could be in

(i)      the payors income, or

(ii)     in the needs of the child.

(i) Evidence of a change in the payors income: This requires evidence to show

(A)      what the payors financial circumstances were at the time the original order was made, and

(B)      what the payors financial circumstances are at the time you are going to trial.

(A) Evidence of the payors financial circumstances at the time the original order was made might include:

     the Financial Statement that the payor filed at the Family Court Registry at the time the original order was made,

     information on the original order (where the order says what the payors annual income is),

     the payors tax returns and notice of assessment at the time the original order was made, or

     the payor or recipient telling the judge what the payors financial situation was at the time the original order was made.  

(B) Evidence of the payors current financial circumstances would include:

     the Financial Statement, tax returns and assessments and other documents showing the payors income, which the payor was required to file at the Family Court Registry,

     the recipient could ask a judge to order the documents be filed if the payor did not file those documents,

     the payor could give information about his or her income under oath to help the judge determine what the payors income is,

     the recipient could give evidence of what the payor said to the recipient about his or her income, or

     what the recipient or witnesses have seen. For example, the recipient might tell the judge that they saw the payor at the payors new place of work, or driving a new car; in other words, evidence from which a judge could infer what the payors income is.

(ii) Evidence of a change in the needs of the child. Evidence of the needs of the child at the time the original order was made might include:

     the recipient, payor, or witnesses describing the childs needs at the time the original order was made, or

     Financial Statements filed at the time the original order was made.


                             Evidence of the childs current needs might include:

     telling the judge why the child has certain needs; for example, if the child needs orthodontic work, telling the judge what the problems are with the childs teeth,

     documents confirming the childs needs; for example, a letter from a dentist confirming the childs needs, or

     bills, statements, or receipts showing the cost of each special or extraordinary expense; for example, a receipt from the dentist.

Possibility three:

(a)     The amount of child support was not made in accordance with a Child Support Guidelines Table, and

(b)     there has been a change in the condition, means, needs, or other circumstances of either the payor or recipient or of any child who is entitled to support.

Evidence:

(a) Evidence that the original order was not made in accordance with the Guideline Tables will be clear from the words in the original order. The order should include a written reason why the court ordered an amount of child support different from the Guideline Table. The original order should be in the Family Court file.

(b) Evidence of a change in the condition, means, needs or other circumstances of either the payor or recipient or of any child who is entitled to support might be the same evidence as that described above for Possibility two. In addition, evidence of the change in needs and means of the recipient would be relevant. Evidence of means (that is, an increase or decrease in the recipients income) could include the same type of evidence that would show a change in the payors income. See Possibility two above.

Evidence of a change in the needs of the recipient could include:

     Part 2 of the Financial Statement that sets out the recipients expenses,

     the recipient telling the judge what changes in needs have occurred since the original order,

     receipts for expenditures, or

     documents such as letters from people familiar with the recipient which support the fact that there has been a change in need.


Evidence that the change is not temporary

You must show that the change in circumstances is not merely temporary. Usually this requirement applies to a payor who is seeking an order that will lower child support. Evidence of decreased income will come from the source of the payors current income (like Employment Insurance benefit statements, or statements from the payors employer). Proof that the change is not merely temporary might include:

     a letter from the payors employer indicating that the reduction or loss of work is not just temporary,

     a statement from an Employment Insurance employment counsellor indicating that little or no work exists in the payors occupation, or

     the payor keeping records of job searches and giving a copy of those records to the judge.


Amount of child support

You will need evidence to prove the amount of support to be paid. Evidence may be needed to deal with three issues:

     what Child Support Guidelines Table amount of child support applies,

     whether a situation of undue hardship exists, and

     whether a contribution to special or extraordinary expenses should be ordered and in what amount.


What Guideline Table amount of child support should be awarded

Evidence will be needed to show:

(a)   the province where the payor resides, and

(b)   the payors annual income.

(a) Evidence of where the payor resides usually is obtained by the payor telling the judge where he or she resides, or the recipient telling the judge what the recipient has observed or has been told by the payor. Evidence of where the payor resides might also be inferred from employment statements that show where the payor works.

(b) Evidence of the payors annual income might come from:

     the Financial Statement, tax returns and assessment notices and the records from the source of income that the payor files at the Family Court Registry,

     the payor telling a judge under oath what their current income is, or

     what the recipient or witnesses heard the payor say his or her income is.

Sometimes the recipient does not believe that the payor is telling the judge about all of the payors income. The recipient may indeed have difficulty if the payor is self-employed and not declaring income. The recipient can cross-examine the payor. But, to be successful, the recipient should have some evidence that might go to show the payor is not revealing the whole truth about the payors income. For example, if the payor just bought a new boat or house, but claims to have very little income, the recipient might ask the payor how they were able to afford these things.


Whether a situation of undue hardship exists

The section Reducing the amount of child support to be paid in Part 2 (Some basic information about the law) of this booklet describes the situations in which a judge can find undue hardship and use that finding to reduce the amount of child support payable below the Child Support Guidelines Table amount. Schedule 2 Undue hardship in Part 3 (How to apply to change a support order) of this booklet shows how information about undue hardship should be filled in on the Financial Statement.

Evidence of undue hardship usually will consist of the payor referring to Schedule 2 of the Financial Statement and telling the judge while under oath that the situation exists, and providing any further documents to support that claim. For example, if the payor claims undue hardship because the payor is under a court order or separation agreement to support another person, the payor would give the judge a copy of that order or separation agreement. The payor would also tell the judge that the payor was actually making the payments required by that order of agreement (assuming that were true).


Whether a contribution to special or extraordinary expenses should be ordered

For a judge to order the payor to contribute to special or extraordinary expenses, and what the amount of the contribution should be, the judge needs evidence of:

     the payor and recipients annual income (so that the judge can determine each parties share of the expenses),

     the cost of the special or extraordinary expenses,

     the amount the child contributes to the cost, and

     whether the expenses are reasonable and necessary in light of the needs of the child and the financial means of the payor.

Evidence that can be used to prove the payors and recipients income is described above.

Evidence of the cost of the expenses could include:

     Schedule 1 Special or extraordinary expenses in the Financial Statement,

     receipts or invoices for the expenditures, or

     the recipient telling the judge what the expenditures were for.

Evidence of the childs contribution to the cost of the special or extraordinary expenses could include:

     Schedule 1 Special or extraordinary expenses in the Financial Statement,

     the recipient telling the judge about the childs earnings and contributions, or

     the child telling the judge about the childs earnings and contributions.

Evidence that the expenses are reasonable and necessary in light of the needs of the child might include:

     the recipient telling the judge why the child has certain needs, or

     documents confirming the childs needs, such as a letter from a doctor.

Evidence that the expenses are reasonable and necessary in light of the needs of the financial means of the payor might include:

     evidence of the expenses of the payor such as Part 2 of the Financial Statement and the payor telling the judge what the expenses are; and

     the payor describing to the judge his or her standard of living.


To change a spousal support order

In order to change a spousal support order, you must prove to a judge that there has been a change in circumstances. The evidence needed will be of a change in the condition, means, needs or other circumstances of either the payor or recipient. For evidence of a change in means, see the section Possibility two above. For evidence of a change in needs, see the section Possibility three above.

To cancel arrears

In order to cancel arrears, you must prove to a judge that it would be grossly unfair not to cancel arrears. This is a difficult test to meet. Judges frequently deny requests to cancel arrears.

Evidence to help a judge decide that it would not be grossly unfair to cancel arrears would include:

     evidence of the payors financial circumstances throughout the period when the payor was not paying support, and

     the payors explanation of the reason they did not pay support.

Evidence of the payors financial circumstances throughout the period when the payor was not paying support could include:

     income tax returns and assessment notices,

     the payor telling the judge about their income and expenses during the time support payments were not made, and

     a written summary prepared by the payor of the payor's income and expenses during the time support payments were not made.

Evidence of the payors explanation of the reason they did not pay support might include:

     the payor telling the court why they did not pay, or

     letters or other documents from the recipient confirming a change in the payors obligations to pay.

Preparing a trial book

A trial book is a small loose-leaf binder in which you keep all the things that you will need at trial. It will include:

     what you want to say when you give evidence at trial,

     questions you want to ask your witnesses,

     documents you want to give to the judge,

     questions to ask the other party when it is your turn to cross-examine, and

     a brief summary of your case to tell the judge at the end of the trial.

To prepare a trial book you should buy an inexpensive one-inch three ring binder, a package of five dividers, and a large (9 x 12) envelope.

 

Prepare a Trial Preparation Worksheet

When you begin to make a trial book it is useful to start by preparing a Trial Preparation Worksheet. On the Trial Preparation Worksheet you would list the points you must prove at trial on one side of the sheet. On the other side of the sheet you would list the evidence that you are going to use at trial to prove those points. Once you have prepared the Trial Preparation Worksheet, it can serve as a checklist for you to be sure that you gather and prepare everything you need for trial.

 

What you want to say when you give evidence at trial

Look at the Trial Preparation Worksheet. Find the points you are going to prove by telling the judge about them. Make a detailed list of the points you want to make. The first point will be a short statement of why you are in court (such as, I am applying for an order to change child support).

Write that list of points you want to make in your trial book. Review the list before the trial.

 

Documents you want to give to the judge

List the documents you want to give to the judge. That way you can easily check to see that you have all the documents you need in the document section of your trial book. Make a copy of each document. You can punch holes in the copied documents and put them in your trial book. Do not punch holes in the original documents. Instead, put the original documents in the large envelope you bought. When you are at trial giving evidence, you will take each original document out of the envelope and hand it to the court clerk as you tell the judge about it. The clerk will give the document to the judge to see. In your trial book you will still have a copy of the document to refer to.

Questions you want to ask your witnesses

If you are going to call witnesses to give evidence at trial you should prepare questions for your witnesses before the trial. Review these questions with your witnesses before the trial. It is important that you know the answers your witnesses will give. Knowing the answers will help to avoid confusion and unexpected replies. Include the list of questions for your witnesses in your trial book.

Questions to ask the other party when it is your turn to cross-examine

Make a list of the questions you want to ask the other party (if any) when it is your turn to cross-examine. Most people find this the most difficult part of their case to prepare. This is because they think that they must somehow break down the witness and force the witness to admit that they are right.

If your goals are less ambitious, you will find cross-examination useful.

Cross-examination is best used to bring out information that the witness has which is important to help prove things you need to prove to win your case.

Cross-examination is also used to try to weaken the other sides case by making the witnesss evidence seem less believable, or by reducing the importance of the witnesss evidence.

A brief summary of your case to tell the judge at the end of the trial

After all the evidence on both sides has been heard, it is time for the summation. Each party is given a final opportunity to convince the judge that they should win. The summation is not another chance to give evidence. You may only refer to points on which evidence has already been given. In the summation section of your trial book you could put your trial preparation worksheet. You could follow the points on it to tell the judge what things you had to prove and what evidence was given to prove each thing.

Get familiar with what happens in court

The following is a diagram of the interior of most Family Courts in British Columbia.

 

 

The personnel in the courtroom include:

     the judge, who hears the case and makes orders,

     the court clerk, who keeps the Family Court files, receives exhibits from witnesses (like letters and documents), and operates the tape recorder which records all evidence given at trial, and

     the sheriff, who will page witnesses who are not in the courtroom, and who ensures that the courtroom remains a safe place.

Almost everyone worries about going to court. Most of the fear and worry is caused by not knowing what will happen in court once you get there. People worry about not knowing what to do. They worry about forgetting what they have to say. They worry about looking foolish.

The best way to deal with these worries is to watch a Family Court in action before the day of your trial. Family Court is open to the public. Telephone the Family Court Registry to find out when court will take place. In some locations in British Columbia a sheriff might ask you why you want to watch. Tell the sheriff that you have a case coming up and want to watch the procedure. You can sit and watch trials for as long as you like. Most people find that if they watch court only for a short amount of time they get confused. Confusion just adds to their worries. However, if you go to court and watch several trials you will become very familiar with the procedure. This will make you much more comfortable when it is your turn for trial. The first and most important thing to do to prepare for your trial is to watch other trials. What you will see is that if both parties are present in court, the trial proceeds in the following manner:

     witnesses should be asked to leave the courtroom and wait outside of the courtroom until called to give evidence,

     the applicant and their witnesses give evidence and are cross-examined,

     the respondent and their witnesses give evidence and are cross-examined,

     each party sums up his or her case, and

     the judge makes a decision.

 

Part 6: Appearing in court

Presenting your case

Make sure you bring your trial book and all your documents to court on the day of your trial. Arrive earlier than the time appointed for the trial to begin. Find the trial list, which is usually posted somewhere in the court building. This list tells which cases are to be tried on that date and in which courtroom they will take place. If your case is not on the list, you should immediately check with the Court Clerk or Registry. If it is listed, go to the proper courtroom and be seated in the gallery.

Always conduct yourself with respect while in the courtroom. Dress neatly and remain silent while court is in session. Rise whenever the judge enters or leaves the courtroom. When speaking to the judge, always stand, speak in a loud, clear voice, and address the judge as Your Honour.

When the judge first enters the courtroom, often the cases to be heard that day will be read out. When your case is called, stand up and identify yourself to the court. This will let the judge know that you are present and ready to proceed. Unless the judge asks you to proceed with your case at that time, you should then sit down until your case is called again. When your case is called, come forward and re-introduce yourself before taking your place at the litigants table. You can then begin your case.

If the other side is not present in court, and if the judge orders no adjournment, you may not have to proceed with the trial.

If the applicant fails to appear in court, the judge may dismiss the applicants case.

If you are the applicant and the respondent fails to appear, the judge will most likely ask you to enter the witness box to give your evidence about the case. Since the respondent is not present, there will be no cross-examination.

If both parties are present in court, the trial may proceed. First, all the witnesses should be asked to leave the courtroom and wait outside of the courtroom until called to give evidence.

The applicant should then enter the witness box and give evidence. If you are the applicant, you should take your trial book with you into the witness box. You will be asked to swear or affirm to tell the truth. Then turn to the list of things that you want to tell the judge. Ask the judge if you can refer to the list. Tell the judge everything that is on your list. At the time you are referring to a document, give the original copy of that document (which should be in the envelope in your trial book) to the court clerk. The clerk will give the document to the judge. If you are explaining things in the document, you can refer to the copy that is in your trial book. Before you finish giving evidence, check your list to make sure you have told the judge all you want to tell.

It will now be time for the respondent to cross-examine you. After each question is asked, take a moment to be sure you understand the question and think about your answer. If you dont understand the question tell the judge you dont understand it. When you do answer, answer truthfully. If you do not know the answer or cannot remember, tell the judge that.  

After the cross-examination, you will leave the witness box and return to the litigants table. It will now be time to call a witness. Tell the judge the name of the witness that you would like to call. The sheriff will page the witness. The witness will enter the witness box, be sworn, and then you can ask the questions you prepared. Use the list of questions in your trial book, which you made up in advance. Your witness will know what to expect and you will know what answers will be given.

The witness can now be cross-examined by the other party.

After all the applicants witnesses have given evidence, it will be time for the respondent to give evidence.

The respondent will enter the witness box and be sworn. After the respondent tells the court what the respondent thinks will help their case, it will be time to cross-examine the respondent. Look at the questions you prepared in your trial book and ask those questions.

In conducting cross-examination, remember that:

     you are not giving evidence, only asking questions. Do not turn to the judge to offer your version of the same matters the witness just testified about, and

     do not argue with the witness.

After the respondent is cross-examined, the respondent can call other witnesses to give evidence. Those witnesses can then be cross-examined.

Once all the witnesses have given evidence, it will be time for each party to sum up. Each party is given a final opportunity to convince the judge that they should win. The applicant usually goes first. The summation is not another chance to give evidence. You may only refer to points on which evidence has already been given. In the summation section of your trial book you could put a copy of your trial preparation worksheet. Follow the points on it to tell the judge what things you had to prove and what evidence was given to prove each thing.

The order

Usually, the judge will tell the parties his or her decision right after the parties have given their final statements. The order takes effect at the time the judge makes it, unless the judge orders otherwise. The court registry staff will prepare a written order, which the judge will sign. The original is kept for the court file and a copy is given to each of the parties. You can ask the registry staff how long this will take.

Notify the Family Maintenance Enforcement Program

Notify the Family Maintenance Enforcement Program if the child support order has been changed.

When you receive a signed copy of the order from the court, make photocopies. If the original child support order had been filed with the Family Maintenance Enforcement Program, send a copy of the new order to the Family Maintenance Enforcement Program.

Conclusion

This booklet is meant to be a self-help tool. It does not replace the advice of a lawyer. Going to court to change a support order made in the Provincial Court of British Columbia (Family Court) can be a lot of work. It is up to you to decide if it is worth the effort. However, if you follow the steps described you should have the information you need to present your case.

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 of More information about the law in Part 2 (Some basic information about the law) of this booklet).

 

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Page Last edited: 2016-09-28 15:39

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