It is common, as life moves on that either the payor or the recipient’s financial situation changes after an agreement or court order has been made.
People become sick, lose their jobs, enjoy significant increases in pay, remarry and the like.
The method for effecting a change to an existing agreement or court order, may involve returning to court if the parties cannot agree.
The place to effect that change is not the Family Responsibility Office (the enforcement branch of the Provincial Government) but rather the court that made the order in the first place.
Your lawyer needs to examine either the agreement or the court order that first called for paying the support. Without that starting point it is impossible to provide accurate advice as to how to effect a change.
A change must meet the legal test of a material change in circumstances unless such a change has been specifically barred by the court or agreement.
The law in this area is complex and begins with the 1994 decision of the Supreme Court of Canada, in Willick. There have been a number of important decisions since Willick including other Supreme Court of Canada decisions such as BG v. G and rights of the family aka Droit de la Famille all of which emphasise that the court needs to examine the objective evidence to assess whether or not the complained of change actually is material.
As with so much in family law, a material change needs to be considered within the specific circumstances of each case.
Some courts have held that as long as such a change was materially foreseeable at the time of the court order that that change cannot be acted upon should it come to pass.
As an example, if you knew your job was in jeopardy, losing it after the court order is not a material change.
Recently, the British Columbia Court of Appeal in Moazzem-Ahmadi v. Ahmadi-Far held that a material change is not really what one person knew or reasonably knew, but whether the change was part of the process in calculating the amount of support at the start. The idea, is to not reargue points brought up in the first round.
If this change is to be contested you should seek advice from an experienced family law lawyer.
