Courts Can Vary Child Support Despite a “No Variation” Clause in a Previous Orderedit
An Ontario court recently ruled that a support order containing the words “not be subject to any variation for any reason whatsoever” does not preclude a court from ordering a variation in the face of material changes of circumstance.
The father lives in British Columbia; the mother in Ottawa. The father has an annual income that is somewhat higher than the mother but both parents earn more than $100,000 per year.
The couple married in 1989 and had three children. They separated in 2000 and obtained a divorce in 2003.
A 2017 support order stated that its terms “will not be subject to any variation for any reason whatsoever.” Both parents consented to the order.
However, the father brought a motion to change his child support obligations towards their youngest daughter and their son due to material changes. He based his application on two events:
1) The daughter moved from the mother’s home into an apartment on November 1, 2018, finished her university degree at the end of December, 2018 and became employed on a full-time basis in January, 2019; and
2) In late July, 2018, the son, who had been attending university in Ottawa, moved from the mother’s Ottawa home to attend university in the B.C. city in which the father lives, though he did not live with the father. The father said he had been giving his son between $450 and $900 per month in addition to his support obligations to the mother.
The father claimed that it was not fair for him to be obliged to continue to pay the mother $900 per month in child support for the son when he was no longer living with the mother, particularly given that the father was financially supporting their son directly.
The father also stated that in December, 2018, after he served the mother with the notice of change, the mother began to pay the son $450 per month. The father claimed that the mother kept the balance of the child support for herself. The mother denied that she used the child support for herself.
Finally, the father sought to terminate all support for the daughter retroactively to January 2019, when the daughter became employed full-time and moved out of the mother’s home.
Despite the fact that the 2017 stated that support “will not be subject to any variation for any reason whatsoever”, the court explained that ss. 17(1) and 17(4) of the Divorce Act provide a court with the authority to vary a support order, provided the court is satisfied that a change of circumstances as provided in the applicable guidelines has occurred since the order was made or last varied. The court stated:
“Child support orders are not set in stone. There is always the possibility that an order may be varied when there is a change in the underlying circumstances that existed at the time the order was made. Parents are responsible for ensuring that their children receive the appropriate amount of support. […]
I am satisfied that even though the December 15, 2017 order says that its support terms will not be subject to any variation “for any reason whatsoever,” I am not precluded from varying the order, provided there has been a change in circumstances since the order was signed and the change of circumstances is material. […]
I conclude that when a request is made to vary an order that says that it will not be varied “for any reason whatsoever”, only an event that could not have been contemplated by the parties at the time of the order could amount to a material change in circumstances.”
The onus of proving a material change fell on the father, as the person seeking the change.
After reviewing the facts, the court found that the father had failed to meet his onus of proving material change. The court found that the life events that occurred with regards to their children had been known to, and contemplated by, the parents at the time of the 2017 order and did not constitute material changes.
As a result, the court denied the father’s motion to vary child support.
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