“The applicant argues that there has been a material change in circumstances since the making of the Final Order; specifically, that his income has increased by almost 50%. Therefore, he submits, payment of the table amount based on his actual income would be inappropriate and the Final Order should be varied so that his income for child support purposes is capped at $2,100,000.00. The applicant argues that, without this cap, the amount of child support payable would exceed the children’s actual needs and would constitute improper “wealth transfer” from him to the respondent.
The respondent argues that there has been no material change in circumstances since the making of the Final Order, as changes in the applicant’s income for child support purposes were anticipated and expressly provided for in the Final Order. Therefore, she submits, there is no basis to vary the Final Order, which should be enforced in accordance with its terms.
Law
The federal child support regime “contemplates that the family as a whole – including the children – will share the rising and falling fortunes of the payor parent” and s. 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) is one mechanism by which child support orders can periodically be varied to “bring them in line with financial realities” (see: Colucci v Colucci, 2021 SCC 24, at paras. 28-29).
On a motion to change under s. 17, the threshold question is whether there has been a material change in circumstances since the making of the order sought to be varied, without which there is no power to vary (see: Assayag-Shneer v Shneer, 2023 ONCA 14, at para. 6).
Any party seeking such a variation must demonstrate a past change in circumstances as set out in s. 14 of the Federal Child Support Guidelines or one that, “if known at the time, would probably have resulted in different terms” (see: Colucci, at paras. 59-61). To meet the applicable threshold, a change in income must be “significant and have some degree of continuity, and it must be real and not one of choice” (see: Colucci, at para. 61).
Decision
The case-at-bar presents – at least, as far as I am aware – a singularly unique situation where a party seeks retroactive variation of a final child support order to effectively reduce the amount of child support payable based on an increase in his income. I was directed to no authority on point and my own research has disclosed none.”