“The Minutes do not provide for a “variation” of child support. The child support payable under the Minutes for three years was “fixed and non-variable”. Critically, para. 3 of the Minutes provides that the child support payable commencing October 1, 2013 “will be reviewable” (emphasis added) as of July 1, 2013, with effect from October 1, 2013. As of July 2013, both parties were required to provide “the income information set out in section 21 of the Child Support Guidelines”.
Paragraph 4 of the Minutes goes on to provide that “any adjustment to child support” payable as of October 1, 2013 “will not be retroactive” and “will be payable in accordance with” the Child Support Guidelines.
These Minutes constituted a temporary solution to the problem of child support, entered into on the eve of what would likely have been a lengthy and costly trial. They were meant to “buy peace” for three years and to provide some stability. This was not an application “to vary” the Minutes. This was not a motion to change under Rule 15 of the Family Law Rules. As specifically provided in para. 3 of the Minutes, this was an application for review of the parties’ child support obligations as of October 1, 2013. There was no prior order of the court fixing child support. There was no requirement to show a “change in the condition, means needs or other circumstances of either former spouse”. There was, however, under the CSG, a requirement to make factual findings about the parties’ incomes.
Canadian law has, for some time, recognized a clear distinction between a “motion to change” and a “review”: Leskun v. Leskun, 2006 SCC 25. A review involves an application for support without the need to prove a material change in circumstances. And, importantly for this case, unless the review is restricted to a specific issue (which, in this case, it is not), a “review” of support payable is generally equivalent to an initial application for support and necessitates a complete rehearing of every issue from entitlement to quantum: Fisher v. Fisher, 2008 ONCA 11 (Ont. C.A.) at para. 63.
As Prof. James G. McLeod said in his annotation to Trewin v. Jones (1997), 1997 CanLII 1105 (ON CA), 26 R.F.L. (4th) 418 (Ont. C.A.), at 420, under a review, either party may return the matter to court at a fixed time. On the return, the court will review support entitlement, form, duration and quantum on the facts as they exist on the return date. The issue of support is determined afresh on the facts and the original onus of proof applies.”