The new BC Family Law Act (expected to become effective July 2012) includes new provisions for a Child Support Service. It appears to us that, provided provisions are included in an order, the Child Support Service would provide a mechanism for child support to be recalculated on an on going basis without requiring either party to apply for a variation to an existing order.
Division 3 — Child Support Service
Definitions
153 In this Division and the regulations made under section 247 (2) [regulations respecting child support]:
"amended statement of recalculation" means a statement of recalculation given after a correction is made under section 156 [correction of recalculation];
"child support service" means the child support service established under section 154 [establishment of child support service];
"notification date" means the date on which both the payor and the recipient are deemed, under the regulations, to have received a statement of recalculation or an amended statement of recalculation;
"payor" means a person who, under an agreement or order, must pay child support;
"recalculated amount" means the child support a payor must pay after recalculation under section 155 [recalculation of child support] by the child support service;
"recipient" means a person to whom child support must be paid;
"statement of recalculation" means a written notice by which the child support service notifies payors and recipients of recalculated amounts.
Establishment of child support service
154 (1) The minister may establish a child support service for the purposes set out in this section.
(2) The child support service may do all of the following:
(a) assist courts in determining child support;
(b) recalculate child support under section 155 [recalculation of child support];
(c) perform additional duties as required by the minister.
Recalculation of child support
155 (1) Subject to the regulations, the child support service may recalculate child support if the child support was originally determined in accordance with the child support guidelines and established by
(a) an agreement that
(i) includes prescribed provisions, and
(ii) has been filed in a prescribed court registry and given to the child support service, or
(b) an order that is issued out of a prescribed court registry.
(2) The child support service may recalculate child support only
(a) on the basis of updated income information, and
(b) in accordance with this Act and the regulations made under it.
(3) After recalculating child support, the child support service must give a statement of recalculation to the payor and the recipient.
(4) Subject to section 157 [changing, suspending or terminating recalculated amounts], if the recalculated amount differs from the current child support by at least the prescribed difference, the recalculated amount, or if corrected under section 156 [correction of recalculation], the corrected recalculated amount,
(a) is deemed for all purposes to be the amount payable under an agreement or order respecting child support, and
(b) takes effect 31 days after the notification date.
(5) If an order for child support is issued out of a prescribed court registry,
(a) the order must indicate which provision of the child support guidelines is relevant to the determination of child support by the court, and
(b) the registry must promptly provide a copy of the order to the child support service.
Correction of recalculation
156 (1) The child support service may amend a statement of recalculation to correct one or more of the following:
(a) a clerical or typographical error;
(b) an arithmetical error made in the computation of the recalculated amount;
(c) an error or accidental or inadvertent omission or other similar mistake.
(2) The child support service may make a correction
(a) on its own initiative within the prescribed period, or
(b) on the request of a payor or recipient, if the request is made
(i) in the form and manner prescribed, and
(ii) within the prescribed period.
(3) If a statement of recalculation is corrected, the child support service must notify the payor and recipient of the correction by sending to them an amended statement of recalculation.
Changing, suspending or terminating recalculated amounts
157 (1) On application by a payor or recipient who disagrees with a recalculated amount or, if corrected under section 156 [correction of recalculation], a corrected recalculated amount, a court may make an order under section 152 [changing, suspending or terminating orders respecting child support].
(2) An application under subsection (1)
(a) may be made no more than 30 days after the notification date, and
(b) must be made to the court that made the order respecting child support or in which the agreement respecting child support was filed.
(3) If an application is made under this section, the operation of section 155 (4) [recalculation of child support] is suspended, and the current child support continues in effect until
(a) an order is made under section 152, in which case, the payor is liable to pay child support as ordered by the court on and after the effective date of the order,
(b) the application is dismissed or withdrawn, in which case, the payor is liable to pay child support in the amount set out in the statement of recalculation as of 31 days after the notification date, or
(c) the prescribed period has passed without the applicant having taken a prescribed step in the application, in which case, the payor is liable to pay child support in the amount set out in the statement of recalculation as of 31 days after the notification date.
Information to be given to child support service
158 (1) The following persons must promptly provide, on request of the child support service, prescribed information to the child support service at the prescribed times and in the prescribed manner:
(a) the payor, the recipient, and the assignees of each of them, to a written agreement respecting child support that has been filed in a court;
(b) the payor, the recipient, and the assignees of each of them, to a proceeding started in a prescribed court registry in which an order for child support is made.
(2) If a person does not provide information as required under subsection (1), the child support service, in recalculating amounts of child support, may make the assumptions and apply any factors or criteria set out in the regulations.
(3) A person required to provide information under subsection (1) may authorize the child support service, by giving the prescribed form to the child support service in the prescribed manner, to request and receive the information from any other person.
Notices
159 (1) A notice or other record required to be given under this Division or the regulations made under section 247 [regulations respecting child support] is deemed to be received on the last date of the prescribed period.
(2) If a child support service is required to give a notice or other record, the notice or other record must be given in accordance with the regulations.
