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Varying Child Support – How Long is Too Long to Wait

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Varying Child Support – How Long is Too Long to Wait ?

In this case, the mother of a child – whose finances had taken a downturn for a few years – narrowly missed being deemed too late to have her child support obligations reduced accordingly.

The child’s father agreed to have custody when he and the mother split up in 2007. At that time the mother was ordered to pay him $211 per month in child support, based on income that the court had to guess was in the range of $25,000 per year.

Three years later, in 2010, the mother brought an application to vary that order, to have the support reduced in line with her lower-income during those subsequent years. (And it must be noted that she was in arrears under the original order at the time of her application).

The mother explained that her circumstanced had changed: she had held a variety of jobs and had been fired from at least two of them because the Family Responsibility Office was taking enforcement measures against her salary. She was in the process of trying to build a photography business with her new boyfriend, but it was faltering and was in fact operating at a loss.

The mother therefore asked the court for a support adjustment, to bring it in line with her $18,000 income for 2007, and her $0 income for both 2009 and 2010, when the photography business was losing money. At the same time she asked the court for an after-the-fact extension of the time for her to file her variation application. (The child’s father did not object to the mother’s application in this regard, and filed no material to refute the mother’s figures.)

The mother was largely successful on her application, though the court refused to vary her support obligation for 2007. However, it agreed to reduce her support liability to $157 per month for 2008, $40 per month for 2009, and $28 for 2010. For the years 2011 and 2012 she was relieved of child support obligations entirely. The child turned 18 in late 2012, so child support after that time would cease in any event.

Although the court commented on her 3-year delay, it concluded that the mother – who was unrepresented – had not intended to let the matter drag on; rather, she was unaware of the correct deadlines for doing so, and unsure of the proper documents to file.

More importantly, the court found that the significant reductions in the mother’s income were a “material change in circumstances” under the law, and were of the type that warranted a corresponding reduction in her child support obligations.

What’s the lesson to be learned? Don’t delay in bringing your variation application! And get a lawyer, so that you know your rights!

For the full text of the decision, see:

Stirling v. Willrich, 2013 ONSC 2003 http://canlii.ca/t/fwx5s

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at Russell Alexander.com