Varying Child Support

After a court has issued a child support order, many parents wonder whether that order is final. The short answer is: no, child support can be varied under certain conditions. Life changes—such as job loss, changes in income, or shifts in parenting arrangements—can make an existing support order unfair or unworkable.

So, what does a child support variation look like, and when does it take effect? What is the legal test the court uses to decide if a variation is justified? And under what circumstances can a parent apply for one?

This blog post explores how a party to a family law proceeding in British Columbia can apply to vary a child support order, the legal standards that apply, and the common situations that may give rise to such an application.

Overview of Varying Child Support

Based on parents’ income and the number of children, the Federal Child Support Guidelines calculate the amount of support payable to the child's primary caregiver or parent who spends more time with the child. A common misconception about child support is that once the amount is fixed by a court order, it cannot be varied. However, this is not true.

Section 17(1) of the Divorce Act [1] (a federal statute) provides that a court “may make an order varying, rescinding or suspending, retroactively or prospectively, a support order or any provision of one, on application by either or both former spouses”.

Similarly, section 152 of the Family Law Act [2] (a BC statute) provides that “on application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively.”

The leading case on child support variation applications is the Supreme Court of Canada’s 2021 decision in Colucci v. Colucci[3], which continues to guide courts in British Columbia. Although Colucci v. Colucci was decided pursuant to section 17 of the Divorce Act, courts have interpreted section 152 of the BC Family Law Act in a similar way as the two sections closely align with each other.

What is a child support variation, and when does it take effect?

To vary a child support amount, a party or parties must apply to the court. Depending on whether the applicant is the payor or the recipient of child support, a variation can result in either an increase (typically sought by the recipient) or a decrease (typically sought by the payor) in the support amount.

The effective date of the new support amount can vary based on the circumstances. A variation may be retrospective, meaning it applies to a past period—usually up to three years. Alternatively, it may be prospective, taking effect from the date the variation application is made or from another date the court considers appropriate.

The type of variation—retrospective or prospective—and the timing of its effective date can influence the legal test the court applies. This is discussed in more detail in the sections below.

What is the general legal test for child support order variations?

As mentioned before, there are two sets of laws that govern child support variation in BC with key differences. The Divorce Act is a federal law that applies only to married or previously married couples. The Family Law Act is a BC law that applies to all types of families including married, separated, divorced, common-law, or unmarried couples.

We will start with the Family Law Act as it can be applied to all BC families.

Section 152(2) of the Family Law Act provides that before the court can order a child support variation, it must satisfy at least one of the following conditions and consider them all if more than one exists.

“(a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made;

(b) evidence of a substantial nature that was not available during the previous hearing has become available;

(c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.” [4]

Similarly, section 17(4) of the Divorce Act provides guidelines for child support variations.

“17(4) Before the court makes a child support variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.” [5]

Both section 17(4) of the Divorce Act and section 152(2) of the Family Law Act require that certain conditions be met before a child support order can be varied. Under the Divorce Act, the courts have established that there must be a material change in circumstances for a variation order, meaning a change that is significant, continuous, and would likely have resulted in a different order had it been known at the time.

While section 152(2) of the Family Law Act considers a change of circumstances in a similar way, it offers a broader framework—including variation based on newly discovered evidence or prior nondisclosure (lack of document exchange).

What is a Change of Circumstances?

A significant or meaningful change in circumstances remains the most common ground for variation. Here are some common examples of material changes (significant and continuous) used to support a child support variation application:

-          Changes in payor or recipient’s employment or income (e.g. unemployment)

-          Changes in payor or recipient’s health (e.g. disability, chronic illness)

-          Changes in the child’s circumstances (e.g. health, financial support)

-          Changes in payor or recipient’s marital status or familial situation (e.g. re-marriage, new dependents/child)

-          Changes in payor or recipient’s living situation (e.g. relocation)

The burden of proof to show that a material change has occurred is on the applicant.

Applications to Retrospectively Vary Child Support

In addition to the general legal tests, there are other legal considerations to have in mind before applying for retrospective variations.

First, a retrospective application can be brought even when the child support order has expired or the child is no longer a child of the marriage (children under 19 or children over 19 but still within parental care due to reasons of higher education, disability, or illness). [6]

Second, support is usually retrospectively varied to the date of effective notice which is commonly capped at three years in the past. The date of effective notice occurs when the applicant provides reasonable proof to the other party that the current child support amount needs to be changed.

Lastly, since the application is retrospective, the court will consider the reason behind the delay in seeking the variation. There are 4 broad factors set out in D.B.S. v. S.R.G.[7], 2006 SCC 37 that are usually considered:

1. Is there a reasonable excuse for the delay?

2. Was there any blameworthy conduct by the payor?

3. Is the retrospective variation appropriate considering the child’s circumstances?

4. Will the retrospective variation cause undue hardship to the payor?

Do you want to learn more? Please contact our team of Vancouver family lawyers for a consultation.

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[1] C.W. v. J.P.F., 2024 BCPC 203 at para 30.

[2] D.B.S. v. S.R.G., 2006 SCC 37

[3] Family Law Act, supra note 2

[4] Divorce Act, supra note 1

[5] Divorce Act, RSC, 1985, c 3 (2nd Supp.), s 17 [Divorce Act]

[6] Family Law Act, SBC 2011, c 25, s 152 [Family Law Act]

[7] Colucci v. Colucci, 2021 SCC 24