HomeFamily LawHow Much of a Decrease in Income Qualifies for Paying Less Support?

How Much of a Decrease in Income Qualifies for Paying Less Support?

Tristan Aronson

In a recent 2021 end of year case from the Court of King’s Bench of Alberta, Hatt v Heather, the father sought a retroactive and ongoing reduction to child support payments being made, both section 3 and section 7, based on the claim that his income was less when comparing to his guideline income as set years prior. This case well summarizes the precedent and position that the courts have taken regarding how much of a reduction in one’s income is necessary to justify lessening payable child support amounts. The Honourable Justice Lema reviews cases that have ruled on this matter, and provides a clear and now very recent decision in what a reduction in income must entail to be considered a material change in circumstances, in order to see one owing less child support from what has been the status quo.

Lema J. reminds how in Schmidt v Christie from 2021 he “…found that up-and-down swings inside a ten-per-cent band did not constitute material changes in circumstance.” RLS v DCM from 2003 out of British Columbia, took the same approach in ruling that 10% more or less income than initially anticipated cannot amount to material change justifying altering support payments. RLS v DCM cited the Supreme Court of Canada ruling of Miglin v Miglin, where it was ruled relating to income that “a certain degree of change is foreseeable most of the time.” Lema J. references seven additional cases spanning between 1996 and 2010, from the jurisdictions of Alberta, British Columbia, Ontario, and Prince Edward Island where material changes in circumstances were not met unless an income changed more than 10%, up or down.

In Hatt v Heather, the father’s changes in income between 2016 and 2020 never moved more than 10% from his guideline income as originally set. The changes ranged from 1% to 9%, with the average change in income throughout the five years being approximately 5%. As a result of the father’s income not changing beyond the 10% mark from the original guideline income as set prior, Lema J. did not see the father’s change in income as a material change in circumstances. As such, the father was unsuccessful in lessening the child support amounts payable. As clearly laid out in Hatt v Heather, unless an income has changed beyond the 10% mark, this will not be seen as a material change in circumstances and therefore child support payments will not be changed.

2022-09-12T16:30:46+00:00March 15, 2022|Family Law|
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