“As Strekaf J. observed in Buckingham, the interpretation of s. 15.1(1) in D.B.S. turned on the precise wording of that provision, which confers jurisdiction to make a child support order for any who were, “at the material time”, “children of the marriage”. The jurisdiction to vary a child support order under s. 17(1) is at large and is not limited by those words. I agree that we should look first to the words of the statute and that given this crucial difference between the words of s. 15.1(1) and 17(1), we are not bound to import the interpretation accorded to s. 15.1(1) by the Supreme Court in D.B.S. when interpreting s. 17(1). Section 17(1) does not, by its language, limit the jurisdiction of the court to vary a child support order to the time period when the children are still “children of the marriage” and the decision in D.B.S. does not compel us to interpret the jurisdiction conferred by s. 17(1) as being precisely the same as that conferred by s. 15.1(1).
Section 17(1) puts parties who are subject to a s. 15.1(1) order on notice that the order may be changed. That puts them in a different position than parties for whom no s. 15.1(1) order has been made.
I also agree with Strekaf J. that allowing a court to vary an existing order after the children cease to be “children of the marriage” is consistent with the principles of child support. The principles at play here are first, that the amount of child support depends upon the income of the parents; second, that as the parents’ income changes, so too does the obligation to pay support. The third relevant principle must be balanced with the second, namely, that child support orders should, as far as possible, foster certainty, predictability and finality.
As D.B.S. explains, it is a basic principle of child support and the Federal Child Support Guidelines that the amount of support is essentially determined by the income of the payor parent. If an order imposes a child support obligation that does not correspond to the payor parent’s income, the order is not consistent with that principle. It is for that reason that D.B.S. permits retroactive orders in appropriate circumstances. Section 17(1) allows a court to vary an order where there has been a material change in circumstances to ensure that the child receives an amount of support commensurate with the income of the payor parent.
Certainty, consistency and finality are important considerations in relation to child support orders but they must be balanced with the concerns of flexibility and fairness.
As the Supreme Court explained in D.B.S., at para. 64, “parents should not have the impression that child support orders are set in stone…[T]here is always the possibility that orders may be varied when these underlying circumstances change: see s. 17 of the Divorce Act”. The court added: “The certainty offered by a court order does not absolve parents of their responsibility to continually ensure that their children receive the appropriate amount of support.” A payor parent is not entitled to assume that his or her obligation is fixed for all time. If the payor’s income goes up, the support obligation may be increased. Similarly, the recipient parent cannot safely assume that he or she will always continue to receive the same amount to help support the children. If the payor parent’s income goes down, the amount of support may be decreased. As D.B.S. explains at para. 74: “As the circumstances underlying the original award change, the value of that award in defining parents’ obligations necessarily diminishes.”
How should these principles apply to the variation of child support orders after the children are no longer “children of the marriage”?
The first two principles favour giving a court the jurisdiction to vary the order, particularly in the case of increased support. I can see no reason why the court should be deprived of jurisdiction to consider the request of a recipient parent who struggled to support the children and to shift part of that burden to the payor parent if there was a change in circumstance that would have justified a variation while the children were still children of the marriage. The court faced with a variation application would, of course, have to be mindful of the principle that child support is the right of the child, not the parent and that once the children are no longer children of the marriage, they will not directly benefit from increased support. However, a regime that gave payor parents immunity after the children ceased to be children of the marriage would create a perverse incentive. If the payor parent is to be absolved from responsibility once the children cease to be “children of the marriage”, the payor whose income increases might be encouraged not to respond to his or her increased obligations in the hope that the reciprocal spouse will delay making an application for a variation increasing support until the children lose their status to avoid opening the door to an increased obligation: see Simone v. Herres, at para. 27.
While the argument for allowing post-“child of the marriage” applications to decrease support is perhaps less compelling, if there is to be jurisdiction to entertain applications to increase, I agree with Buckingham that the law should adopt an even-handed approach and, from a jurisdictional perspective, treat payor and recipient parents the same way. If a court has jurisdiction to consider a recipient parent’s request for a retroactive increase in child support where the payor’s income increased, there should also be jurisdiction to consider a payor parent’s request for a reduction where his or her income declined. Moreover, as I will point out, while the question of jurisdiction is one thing, the question of whether such applications should be allowed is quite another.
This brings me to the considerations of certainty, predictability and finality. I recognize that these are important values in the family law regime. The law should strive to be as certain and predictable as possible. The law should also discourage disturbing settled arrangements so that parties are encouraged to resolve their disputes and get on with their lives following family break-down, ideally without ever resorting to litigation for the sake of the children: see Louie v. Lastman (2001), 2001 CanLII 28065 (ON SC), 54 O.R. (3d) 286 at paras. 33-34 (S.C.), aff’d (2002), 2002 CanLII 45060 (ON CA), 61 O.R. (3d) 449 (C.A.), leave to appeal refused, [2002] S.C.C.A. No. 465.
But as I have already mentioned, the interests of fairness and the need to ensure that children get the support they deserve precludes a rigid approach that forbids changing support orders when there has been a change in circumstances. The very existence of s. 17(1) demonstrates that finality has its limits and that neither children nor parents can safely assume that support orders will never change. The interest of certainty and finality does not, in my view, justify erecting a rigid jurisdictional bar on variation applications simply because the children are no longer “children of the marriage”.
For these reasons, I conclude that neither the language of s. 17(1) nor the principles of child support require us to deny a court jurisdiction to vary an existing child support order or well established written or oral argument after the children cease to be “children of the marriage”.”