There is often a child support obligation when parents get divorced or separated. This means that one of the parents must pay the other parent a portion of their income on a regular basis to help support their child. But what happens if the parent does not pay the child support? With many still struggling financially in the wake of COVID-19, it is no surprise that there has been a rise in arrears in child and spousal support payments. If a parent fails to pay the required child support payments, they will be noted in arrears and the amounts that goes unpaid will accumulate. This simply means that just because a payment is not made, does not mean that it is no longer owed.
The Supreme Court of Canada (SCC) recently refused a father’s request to have the amount he owed in arrears reduced. In doing so the SCC reviewed some of the law surrounding varying child support orders.
Generally, courts have broad discretion to vary child support orders. However, in exercising this discretion, they generally take three considerations into account:
1. The child’s interest in receiving the appropriate amount of support to which they are entitled;
2. The interest of the parties and the child in certainty and predictability; and
3. The need for flexibility to ensure a just result in light of fluctuations in the payor’s income.
When trying to vary a child support order, the party requesting the order must provide documentation that supports their position. Evidence of a significant change of income can count as such evidence. In the SCC case referred to above, the father failed to provide support for his position. In addition, the Court found that his failure to pay the required child support over the years amounted to bad faith.
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