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

Part 1: What’s in this booklet

• Do I really have to go to court?
• Some words that need defining

Part 2: Some basic information about family law

• 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
  • Change of circumstances
  • Cancelling arrears
  • More information about the law
    • Legal Services Society Family LawLINE
    • Legal Resource Centre
    • Lawyer Referral Service
    • Family Justice Centres
    • Parenting after separation courses

Part 3: How to change a support order by consent

• Applying to the Court to change a Support Order By Consent – Checklist
• An Explanation of Each Step:
  • Step 1: Agree on the amount of support to be paid
  • Step 2: Obtain a copy of the support order you want to change
  • Step 3: Obtain copies of the payor and recipient’s most recent income tax returns
  • Step 4: Prepare the court documents you need
  • Step 5: Swear the Affidavit
  • Step 6: Make three copies of the Documents
  • Step 7: Notice of the application to the Family Maintenance Enforcement Program
  • Step 8: File the documents
  • Step 9: Obtain the Order
  • Step 10: Make copies of the order and Notify FMEP

Appendix of Forms

• Sample of a completed Application
• Sample of a completed Request
• Sample of a completed Consent form
• Sample of a completed Affidavit
• Sample of a completed Consent Order

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 also includes:

• a brief outline of the law that the court will apply when deciding whether to change a support order or cancel arrears, and
• sample documents that you will need.

Do I really have to go to court?

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

The procedure to change a support order when the parties agree is simple and does notrequire a trial. So, before applying to the court, it makes a lot of sense to talk to the other party to see if you can come up with an agreement. However, before agreeing to change a support order you should understand the law and the procedures involved.

If you cannot reach an agreement, the procedures to follow described in the booklet entitled “Changing a Support Order in Family Court When the Parties Cannot Agree.” You may also want to visit the Legal Services Society’s Family Law resource website. Find your local Legal Services Society office or visit a local library.

Before skipping to Part 3 (How to apply to change a support order by consent) of this booklet, you should read Part 2, which provides 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 (FLA) : the law passed by the British Columbia legislature that sets out the duty to pay support, when support can be varied and when arrears can be cancelled.

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

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

Part 2: Some basic information about the law

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

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

Child Support Guidelines

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

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

Here is an excerpt from the British Columbia Table for payors supporting three children:

INCOME		MONTHLY AWARD ($)
From	To	Basic Amount ($)	Plus (%)	Of Income Over ($)
12,000	12,999	0	11.9	12,000
17,000	17,999	270	3.54	17,000
27,000	27,999	579	2.42	27,000
34,000	34,999	728	1.98	34,000
50,000	50,999	1,029	1.86	50,000

The Tables provide for a payor’s annual income ranging from $12,000 to $150,000 and over.

If a payor has an income of $12,000 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 $17,000, then the payor would be required to pay $270 monthly for the support of three children. And if the same payor had an income of $34,000, then that payor would be required to pay $728 monthly for three children.

Reducing the amount of child support to be paid

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

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

A judge can reduce the amount of support payable for a child if it would be unfair to require the amount in the Table to be paid because (i) special provisions have already been made for the child in an order or agreement, or (ii) the parents have divided up their debts or property in an order or agreement in such a way that the child would benefit.

Another 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 “Household 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:

1. 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;
2. 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
3. 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 spousal 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 spousal support

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

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

The basis for cancelling arrears

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

More information about the law

The information in this booklet is believed to be correct as of the date it was published. However, the law is always changing. You should obtain legal advice to ensure that the information in this booklet is still accurate and that you understand exactly what your rights are. If you are eligible, you can obtain legal advice from some local legal aid offices. Click here for the telephone number of the Legal Services Society call centre or click hereto find your nearest Legal Services location. 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 a Child Support Table Look-up resouce by clicking here.
• You can view the Child Support Guidelines and Tables by clicking here.

Legal Services Society Family LawLINE

Family LawLINE lawyers give brief “next step” advice about family law issues such as:

• parenting time or contact / access,
• guardianship / custody,
• child support,
• spousal support,
• property division,
• family agreements, and
• court procedures.

To be considered for the Family LawLINE service, call our the Legal Services Society’s province-wide call centre (604-408-2172 in Greater Vancouver; 1-866-577-2525 elsewhere in BC). Interpreters are provided if you need services in languages other than English. Call centre hours:

Mon, Tue, Thu, and Fri — 9 am to 3 pm
Wed — 9 am to 2:30 pm

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 BC:

• Lower Mainland: (604) 660-2421
• Victoria: (250) 387-6121
• All other areas of BC: 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 BC. The workshop is intended to help parents understand the effects of separation on themselves and their children and how to recognize and meet the children’s needs. You can find out more about these programs by calling your local Family Justice Centre. In some communities, people who want to go to court to change a family court order must first attend a Parenting After Separation course.

Part 3: How to Change a Support Order by Consent

A Change for Income Tax Purposes Only

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

Applying to the Court to change a Support Order By Consent

Here is a checklist of the things you must do to change a support order where the payor and recipient agree. (You can find a printable version by clicking here.) Below, in the section “An Explanation of Each Step”, you will find details about how to do these things, including information about how to fill out the forms you need.

Step 1

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

Step 2

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

Step 3

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

Step 4

Prepare the court documents you need. These include:

1. The Application
2. The Request
3. The Consent
4. The Affidavit
5. The Consent Order

Step 5

Swear the Affidavit.

Step 6

Make three copies of the Documents.

Step 7

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

Step 8

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

Step 9

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

Step 10

Make three copies of the order. Notify the FMEP if a child support order has been varied.

An Explanation of Each Step:

Step 1

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

Spousal support:

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

Child Support:

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

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

Arrears:

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

Step 2

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

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

Step 3

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

If you do not have copies of your income tax returns or assessments you should request them from your nearest tax office. Click on your region from the following to find contact information for the office closest to you:

• Kelowna (Southern Interior BC)
• Prince George (Vancouver Island and North)
• Penticton (Southern Interior BC)
• Surrey (Fraser Valley)
• Vancouver
• Victoria (Vancouver Island and North)

Step 4

Prepare the court documents you need.

You will have to prepare five forms. Click any of the following to jump to each form:

1. Learn how to complete the Application
2. Learn how to complete the Request
3. Learn how to complete the Consent
4. Learn how to complete the Affidavit
5. Learn how to complete the Consent Order

Click the following links to download blank PDFs of each. You can also get free printed forms from the Family Court Registry.

• The Application
• The Request
• The Consent
• The Affidavit
• The Consent Order

The instructions for each form are listed in the order you’ll need them below.

The Application (Form 2) – blank PDF

Click here to view a sample of a completed Application.

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

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

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

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

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

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

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

and to: Tick the box [ ] in front of “Director of Maintenance Enforcement” if the original order was filed with FMEP.

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

Then you have to choose which box to tick in accordance with the application you’re making.

[ ] I ask that the attached order dated…: If you are proposing a change to the existing order, tick the box in front of the words “I ask that the attached order dated… be changed…” After the word “dated” insert the date on which the original court order was made. Then, in the space provided after “be changed to the following“, insert a phrase such as:

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

“The respondent must pay to the applicant a sum of $59.20 per month for special expenses for the children, payable on the 1st day of each and every month commencing January 1, 2000 allocated as follows: [child’s name, nature of special expenses, amount].”

Examples of allocated special expenses: 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 be cancelled or reduced as follows: If you have agreed to a reduction in arrears, insert a phrase such as:

“that all existing arrears be cancelled;” or

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

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

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

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

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

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

Dated: insert the date you filled out the form.

Signature: sign the form.

The Request (Form 18) – blank PDF

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

Click here to view a sample of a completed Request form.

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

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

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

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

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

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

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

Leave the rest of the form blank.

You will note that on the bottom of the form there is a place where a judge can tick a box to require you to attend court to explain why the order you want should be made. If a judge does tick that box, you will be advised by the court registry staff of the time and date when you must appear in court. Some reasons for requiring parties to appear in court when they are consenting to an order may be that the information on the forms is incomplete or that a child support order is not in the amount of the Guideline Tables.

The Consent (Form 19) – blank PDF

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

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

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

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

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

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

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

• who is to be the payor and recipient;
• who the support is for (including birthdates, if the support is for children);
• the amount of support to be paid (if any);
• the date when the changed support payments will begin; and
• the date when subsequent payments must be made (if any).

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

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

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

The Affidavit (Form 17) – blank PDF

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

Click here to view a sample of a completed Affidavit.

Here is some information about how to prepare an Affidavit.

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

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

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

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

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

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

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

You must include paragraphs relating to:

• the basis upon which you want the judge to change the support order.
• the applicant’s source of income and annual guideline income.
• the respondent’s source of income and annual guideline income.
• the amount of support to be paid for spousal and child support in the order you are seeking and ( if applicable) the amount of arrears to be cancelled.

Your Affidavit must include additional paragraphs if:

• Amount of child support is not a Table amount: If it is not a Table amount, include the reasons for the amount being less or more.
• Special or extraordinary expenses are being sought: If so, information should be set out in the Affidavit to show that the expenses are appropriate. Note: the Child Support Guidelines contain a formula for determining the amount that each parent should pay toward special or extraordinary expenses. Basically, that formula says that special expenses should be shared by the parents in proportion to their income.

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

The Consent Order (Form 20) – blank PDF

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

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

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

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

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

Before the Honourable Judge: leave this area blank.

On the application of: insert the name of the applicant

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

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

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

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

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

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

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

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

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

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

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

If the order you have agreed to has an amount different than the amount required by the Guideline Tables then include the following paragraph:

THIS COURT ORDERS THAT:

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

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

THIS COURT ORDERS THAT:

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

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

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

If the order concerns spousal support use the following paragraph:

THIS COURT ORDERS THAT:

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

____________________________________________________________

____________________________________________________________

or

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

_____________________________________________________________

_____________________________________________________________

or

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

or

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

Name                                                     Birthdate

_______________________    ________________________

_______________________    ________________________

_______________________    ________________________

The payor is required by an order or agreement dated ____________to pay $________________ for support of the following children: fill in the child’s name / fill in the nature of the expense / fill in the payor’s share

 

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

THIS COURT ORDERS THAT:

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

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

THIS COURT ORDERS THAT

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

For example:

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

Transportation $_______________

Accommodation $______________

Lost income $_________________

Other $_______________________

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

Step 5

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

Swear the Affidavit

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

Step 6

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

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

Step 7

If the order being varied is a child support order, give notice of the application to the FMEP (if the child support order has been filed with that Program). One copy of the Application, Request, Affidavit, Consent and Consent Order and income tax documents should be sent to the FMEP office where the child support order was filed.

Step 8

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

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

Step 9

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

Step 10

Make three copies of the order. Notify FMEP if a child support order has been varied.

 

 

CONTENTS

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

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

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

 

 

Prepared by Glenn Gallins, LL.B., LL.M.
Revised December 2000, some updates 2016, links checked 2019
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