Spousal or child support are matters of considerable comprehension after the breakdown of a marriage. Oftentimes, the court intervenes to settle down the support agreement between parties and compliance of that support order is necessary. But after a while you have no longer any source of income and you are worried whether you are still required to provide support?
It is no wonder that spousal support variation or termination cases are equally problematic for the payor and the recipient. In this blog article, a case is discussed that deals with the child and spousal support variation or termination.
Hinz V. Davey, 2022 Bcca 232: A New Framework To Award Variations In Retroactive Support Agreements Under Family Law
So, What Happened?
An appeal was filed by the father as his claim was dismissed. His claim asserted retroactive variation of the child and spousal support agreement by the parties.
Both parties were in a common-law marriage for a period of almost 6 years. The couple separated in 2016.
The parties have a daughter as a result of a marriage-like relationship who was currently 10 years of age. In 2018, both parties entered into a separation agreement.
The father was obliged under the separation agreement to compensate the private school tuition fee for their daughter and pay $10,000 monthly for child and spousal support.
The father was duly paying the amount as provided by the agreement till March 2020. The Covid-19 pandemic drastically affected his business and overall income.
Having that in mind, he claimed to retroactively alter the child and spousal support provisions in the agreement which was promptly dismissed by the chamber’s judge.
Father’s claim was dismissed on the ground that Family Law Act (FLA) did not accommodate the element of variation of child and spousal support agreements.
However, on the contrary, section 148(3) of the FLA empowers a court to replace some part or entire child or spousal support agreement. It is pertinent to note that only agreements with an order under Division 2 of the FLA that have the retroactive application can be altered.
This condition alludes to the fact that child or spousal support agreements are thus considered variable against the changing circumstances for parent and child. The requirement of a material change in the retroactive child support agreement sits at the front.
Hence, the appeal was allowed as the father testified that the judge clearly misinterpreted section 148(3) of the FLA. It was determined that the judge erred in principle and the material change in circumstances amounted to the father’s right to the variation of the child agreement order.
Our Skilled Lawyers Can Guide You
If you require any assistance pertaining to change or termination of your child or spousal support agreement, please get in touch with our family lawyers at Ayaz Mehdi Professional Corporation
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