BY VALERIE DYE
Bearing in mind that orders for the payment of child support and spousal support are based on certain circumstances the family law legislation makes provisions for support payors or even support recipients to bring a motion seeking a change in support payments. It should be noted that often times obligation to pay support may come about as a result of a Separation Agreement rather than a Court order. In such circumstances the provision relating to support payments in the Agreement is enforceable by the Court even though the Agreement was entered into voluntarily by the parties. In this regard, a motion can also be made by either the support payor or support recipient for a change in the support payments.
On what basis can either the payor or recipient seek to have a support order changed? According to both the Family Law Act and the Divorce Act the court must be satisfied that there has been a material change in either the payor’s circumstances or the recipient’s circumstances.
A material change must be of such that if such circumstance was known at the time the order or agreement was made it would have resulted in a different order or different terms in the Agreement. One of the main reasons for seeking a change support order is where the payor experiences a reduction in income. Variations are also often sought where a child is no longer a dependant. The recipient of child support can also seek a variation in support payments if the income of the payor has increased significantly which allows him to pay more support than he or she was ordered to pay.
In genuine cases where the payor definitely experiences reduced income the court is likely to vary the support order to allow the payor to make smaller support payments. However, where the payor deliberately causes his income to be reduced by quitting his job the court is likely to refuse to vary the support payments and may impute income to the payor based on the amount the payor would have earned had he remained in employment. Voluntary unemployment would not be considered a material change in circumstances for the purposes of terminating or reducing support payments.
The court may also impute income to the payor based on his or her lifestyle. For instance, if the payor seeks a variation in support payments on the basis of reduced income but at the same time the payor goes on vacations and buys an expensive car the court is likely to impute a certain level of income to the payor and determine that support payments should not be reduced.
Where a payor files a motion to change support payments on the basis of his failure to obtain employment the court may require evidence of his job search such as copies of job applications made and the responses obtained from such job applications.
As such, both legislation and case law make it clear that, although parents may apply to court to change the support order and allow them to pay less support or no support at all, the court does not automatically change the order. Further, the court does not automatically accept a payor’s claim that he or she is earning less income especially where the payor is deliberately underemployed in relation to his or her qualifications and where the payor lives a lifestyle that suggests that he or she is earning much more that the amount that was declared.