Mallory Arnott

Mallory Arnott, Family Department

If you already have a court order in place dealing with custody, access or maintenance, you may wish to vary it at some point in the future. However, in order to vary a court order, you must demonstrate a “material change in circumstance” has occurred. You cannot vary a court order simply because you do not like it.  So what is a material change in circumstance?

Child Maintenance

For Child Maintenance, a material change in circumstance is as simple as an increase or decrease in income. The threshold for what qualifies as a “material change” is very low, and need only be a change in income of at least $100 annually. Most court orders and agreements have a clause that requires annual disclosure of income tax returns for the paying parent, and sometimes both parents. It is important to disclose your income to the other parent annually, or when there is a change in employment circumstances.

If your order is not registered with the Maintenance Enforcement Program, your income tax returns must be provided directly to the other parent, usually by no later than June 1 of each year. Child Maintenance will be adjusted in accordance with the Child Support Tables, which go up in $100 increments. The change in child support payments can be varied by agreement without the necessity of returning to court if full financial disclosure has been provided and both parties are in agreement.

If your order is registered with the Maintenance Enforcement Program, you will need a new court order to vary the Child Maintenance amount. The Maintenance Enforcement Program cannot vary an order on their own, they can only enforce an order issued by the court. To avoid racking up arrears, make your application to vary the order as soon as possible, and request that the order is retroactive to the date the change took place.

To avoid having to return to court to vary your child maintenance order, you may qualify for the Administrative Recalculation Program. Only court orders that have a clause in them stating that they are a part of this Program can be considered for recalculation. However, not all situations are eligible for recalculation under the Program. Speak to a lawyer to see if this program is right for you.

Custody and Access

Before a court will make a variation order in respect of custody or access, there must be a material change in circumstances.

For custody and access, a material change in circumstances means that you must demonstrate a change in the condition, means, needs or other circumstances of the child occurring since the making of the custody order or last variation. Change alone is not enough. The change must have altered the child’s needs, or the ability of the parents to meet those needs in a fundamental way. Trivial, fleeting and frivolous changes will not meet the threshold. The reason there is requirement for a material change of circumstances before a court will vary a custody/access order is to provide a sense of stability for the child. If it ain’t broke, don’t fix it! The case law has determined that the requirements for a material change in circumstances are:

  1. There must be a change in the condition, means, needs or circumstances of the child or the ability of the parents to meet the child’s needs;
  2. The change must materially affect the child; and
  3. The change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

If a material change in circumstances can be demonstrated, the court may make a variation order, taking into consideration only the best interests of the child as determined by reference to that change. What qualifies as a material change in circumstance depends on the facts of the individual case.

If you are unsure whether there has been a change in circumstance or for more information on varying court orders, please contact our Family Department.

*This article is meant to be for information purposes only and is not intended to be legal advice or opinion. If you have any further questions please consult a lawyer. Many of the statements in this blog post are general principles which may vary depending on each person’s case.