“The mother argues that the motion judge erred in her articulation and application of the test on a motion to change. I agree.
Section 17(1)(a) of the Divorce Act gives a court of competent jurisdiction the power to vary a support order. Section 17(4) precludes the court from varying a child support order unless there has been a “change of circumstances” since the initial support order or the last variation order was made. Sectio 14(b) of the Federal Child Support Guidelines, SOR/97-175, contemplates that a change of circumstances constitutes “any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support”. As reviewed above, the 2017 Order also contained a term allowing for the variation of support when there is a material change in circumstances.
In conducting an inquiry into whether there is a material change in circumstances, courts have required the party seeking the variation to demonstrate a material change of circumstances that was not contemplated by the parties at the time that the initial order was made and that, if such a change had been known, “would likely have resulted in different terms”: L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, at para. 32, citing Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, at p. 688.
The Supreme Court of Canada set out the test for determining whether there has been a material change of circumstances in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at paras. 10-13. This court, in N.L. v. R.R.M., 2016 ONCA 915, 88 R.F.L. (7th) 19, at para. 29, summarized that test as having three components:
1) a change in the condition, means, needs or circumstances of the child and/or or the ability of the parents to meet those 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.”