Can Child Support be lowered due to lay off?

[tbear]

My husband pays child support based on the Federal Support Guidelines for Ontario. When my husband got divorced the judge set an amount but since then him and his EX have just based it every year on his taxes using the guideline. He just got laid off and even recieved the max EI he is getting less than half his usual income. She isn't willing to adjust the child support based on the change to his income becasue it would be a reduction for her. Can anyone tell me who I have to contact or what we have to do in order to get the payments reduced to reflect his income on EI? Thanks!

[independentgal]

I believe you have to bring a motion to vary child support. You have to file an affidavit about the change in circumstances to be served with the motion.

First you have to go to the court and ask when motions days are. Then you can structure your preparation of materials allowing for proper serving of the documents to the ex.

Here is a quick excerpt from a website about a motion to vary(understand that it is biased towards getting legal help as the author is a lawyer):

Child Support Arrears Variation
Motion to change child support and child support arrears
Unlike ordinary debts (e.g. credit cards), child support arrears can be challenged and adjusted retroactively in certain cases. Statements of Arrears or demands for payment or collection of arrears are not the final answer on what is owed. Either party has the right to try to renegotiate arrears or to bring to the Court a Motion to Change child support. In a Motion to Change (also known as Motion to Vary) child support, the applicant requests the variation of child support and the arrears to more accurately reflect the situation of both or one of the parties over the period of time that the arrears accumulated.

This possibility to change child support arrears makes a support debt unlike any other judgment debt.

The basic law provides that a court of competent jurisdiction may make an Order varying, rescinding or suspending, prospectively or retroactively, on application of either or both former spouses.

For a court to make a variation order, the person seeking the change of child support - either an increase or a decrease - must show that there has been a material change in circumstances since the making of the existing order (as provided for in Child Support Guidelines).

An exception to this universal rule involves the Guidelines itself. Specifically, the introduction of the Guidelines in 1998 constitutes a material change in circumstances giving the right to either party to change a pre-Guideline Order.

Otherwise, any change in an existing Order requires the claimant to establish a material change in circumstances. Essentially, this involves a change in income, custodial arrangements, or cessation of dependency.

A variation in the order changes the child support arrears as well. The support collection agency may only collect the varied arrears. All enforcement actions must abide by the terms of the new varied order.

It is fundamental in any variation application that the person seeking the change of a child support order must establish what the situation was at the time the order was made. Therefore, financial statements and income details, including income tax returns and notices of assessment for both parties from the time the original order was made, are the starting point. Thereafter, the income tax returns and notices of assessment and supporting documentation proving the change (eg. severance or termination documentation regarding a job change or loss) must be gathered together as basic preparation for the variation application.

As explained earlier, either side has the right to request child support variation. Having said that, bringing a Motion to Change (Vary) child support and arrears to a Court can be a complex process. You will likely need a lawyer's help.