The court (again) explores – What constitutes a material change in the recent Court of Appeal decision, Licata1. In order to bring a motion to change before the court, to change a final order, there must be a “change in circumstances”, since the last order (dealing with support) was made.2 The change in circumstances can be from “any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support”.3
It is important to know that if you file a motion to change support, you MUST demonstrate that a material change of circumstances was not contemplated by the parties when the existing final order was made. Furthermore, you must show that if such a change had been known, at the time the final order was made, it “would likely have resulted in different terms”.4
In Licata,5 the father wanted to stop paying child support for his children, who had reached the age of majority and were enrolled in a post-secondary education program.
The Order in existence had addressed the issue of the child being over the age of majority and determined that the child was still a “child of the marriage” as the child could not withdraw from parental control since he was attending university.
Who is a “Child of the Marriage”?
Some think that a child of the marriage is a child that is under 18. This is not true. A child of the marriage can be a child who reaches the age of majority.
According to the Divorce Act definition, a child remains a “child of the marriage” if they are “under
[parental] charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life “6. One way of meeting this onus of remaining under parental control is when a child is enrolled in a higher education.7
What is a Material Change?
The Supreme Court of Canada has set out the test for determining “material change”:
- a change in the condition, means, needs or circumstances of the child and / or the ability of the parents to meet those needs;
- the change must materially affect the child; and
- The change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.8
In Licata9, the Court of Appeal restated that the starting point for a motion to change the support for the child would be a material change in circumstances that were not anticipated by the parties when the Order in existence was made. The onus of demonstrating a “material change” is on the party bringing the motion to change.
In this case, the motion judge started from a position of there being a material change based on – the child reaching the age of majority. The Court of Appeal found that this was an error in principle because the final Order had already determined that the child was over the age of majority when the Order was made. As such, the child reaching the age of majority was not a material change that had occurred after the final Order (and therefore does not create a material change justifying a variation).
What is a material change that would qualify for a variation in child support?
The courts have determined that they will only consider a material change that is “significant and
long-lasting “. A court will exercise caution before changing an existing support order.
In Licata10, this was not a case of initially proving a child remained a “child of the marriage”. This case was a motion to change that would require a change in circumstances in order to justify a new order. As such, the only relevant question for the Court of Appeal to consider was proving a material change in circumstances since the last order and more specifically, whether it was beyond the parties’ contemplation that a child of the marriage would take an extended period of time. to complete university studies.
Ultimately, the Court of Appeal found that the trial judge had erred in terminating child support stating that “child support should not be terminated until the father can demonstrate that there has been a material change in circumstances not contemplated at the time of the previous Order and that the child is able to withdraw from parental control. “
This demonstrates that the first hurdle of a moving party applying for a variation order is whether there is a material change in circumstances.
The Court of Appeal further stated that: “A motion to change must be based on the proper evidentiary foundation and an analysis of whether there is a material change in circumstances.”
Filing a motion to change without a material change in circumstances will result in not only a case being dismissed but could result in a significant cost award against the moving party.
If you are contemplating returning to court to vary / change an existing Order, it is worthwhile to discuss your case with a family lawyer prior to filing a motion to change.
This blog was co-authored by Summer Law Student, Kathleen Judd.
1. Licata v. Shure2022 ONCA 270
2. Divorce Act, s. 17 (4)
3. Federal Child Support Guidelines, SOR / 97-175, s. 14 (b)
4. LMP v. LS2011 SCC 64,  3 SCR 775, at para. 32, citing Willick v. Willick1994 CanLII 28 (SCC),  3 SCR 670, at p. 688
5. Supra note 1
6. Divorce Act, s.15.1 (1)
7. WPN v. BJN, 2005 BCCA 7, 249 DLR (4th) 352, at para. 18
8. Gordon v. Goertz1996 CanLII 191 (SCC),  2 SCR 27, at paras. 10-13.
9. Supranote 1
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.