The percentage ratio of people undergoing divorce in Canada has risen largely and this has led to homes having single parents. As a result there are a number of aspects that arise due to divorce such as separation, child support, spousal support, child visitation and access. There are a number of frequently asked questions in respect of child support. This article will address some of these questions.
Question: What is the difference between child support and child maintenance?
Answer: The only major difference between child support and child maintenance is that child support is governed or regulated by the Federal Divorce Act while child maintenance is governed or regulated by the Maintenance and Custody Act. Further, child maintenance is a provincial law while child support is a federal law.
Question: How do I know that the child support I am paying is being spent properly and for my child?
Answer: The short answer is that you do not know, mainly because child support is meant to be a contribution to the basic necessities of the child that is housing, food, clothing etc. further, neither the court nor the Maintenance Enforcement Program will keep track of what the parent receiving child support spends the money on. However, the table amount assumes that the parent caring for the child is always contributing to the financial support of the child. Therefore, the amount a parent pays for child support is the paying parent’s contribution as they would if they were living with the other parent and child helping each other with the child’s expenses.
Question: What is imputed income?
Answer: If the court feels that the amount of income a parent claims that they earn is not a true or fair reflection of his or her actual income, then the court attributes income to that person. The act of attributing income to a parent is imputing income. If a court imputes income to a parent this means that the court can set the child support amount based on what the person should be earning (i.e. the imputed income) instead of what they are earning or claim to be earning.
A court may impute a parent’s income under the following circumstances:
- The parent is purposefully unemployed or underemployed (unless due to reasonable educational or health needs or this is a requirement for the needs of the child)
- The parent is exempt (legally is not to pay) income tax
- The parent lives in a country where income tax is much lower than in Canada
- The parent appears to have diverted or hidden his or her income which would affect the level of child support
- The parent’s property is not reasonably used to generate income
- The parent failed to provide income information as required by the court.
In respect of cases or situations relating to the imputing of one’s income it is imperative that the parent seek legal assistance from a lawyer who handles matters regarding Toronto divorce law. This will allow him or her to receive advice on ways to deal with the imputing of income.
Steps For Motion to Change Child Support
After a final Order has been made by a Judge with respect to monthly child support payments, circumstances may arise that warrant changes be made to the original final Order. You will likely have to bring a motion to change child support. The procedure to bring about these changes to the Order has been outlined in Section 15 of the Family Law Rules. This process entails bringing a motion to change or modify child support payments.
A motion to change child support may be brought before judge when there is material change in the financial circumstances of the payor spouse or when there is material change in the financial circumstances of the receiving child. Example of this are:
- The payor spouse is making less or more money since the final Order was made;
- The receiving child is now self-sufficient in terms of financial support; and
- The living arrangement of the receiving child has change
This motion to change child support implies asking the Judge to consider the new facts that have emerged since the final Order and therefore change the original final Order accordingly.
If you plan to bring a motion to change monthly child support payments, you will require evidence to put forth in front a Judge in order to argue why a change is required to the original final Order. It is thus imperative to collect documents such as: a copy of an existing child support Order, copies of Income Tax Returns including T4 slips, pay stubs, ROE or severance documentation (if applicable) and medical reports (if income deduction is attributed to health related factors). These are some examples of documents that may be helpful for your motion and are not meant to be an exhaustive list. The evidence you need to consolidate depends entirely on the nature of your circumstance. Therefore, retaining a lawyer to bring a motion to change child support can prove to be highly beneficial for this purpose as they can advise on how to build a solid case ready with all the necessary documents for your matter.
Generally a motion to change child support may be brought utilizing two approaches
The first approach is when both parties agree to the changes to be made to the original Final Order. This is called a Consent Motion. In this case all parties involved complete and file with the court: Form 15D, Consent Motion to Change Child Support, which is to be signed by each party and any assignees. You then are required to file in Court 5 copies of a draft Order. You must then complete a Support Deduction Order Information Form and then have a draft Support Deduction Order filed in court. The Clerk at the court will bring these documents before the Judge. For a motion to change, no case conference is required and neither are the parties required to attend court, unless otherwise instructed by the Court. Once the Order has been signed, the Clerk will provide the signed order or they may contact to parties to instead attend court.
In the second approach, where there is no consent between the parties on the issue of changing the original final Order, a motion to change is also brought. In this case, the moving party (the party bringing the motion) completes Form 15 Motion to Change and Form 15A Change Information Form. Once completed these forms must be brought, including any additional supporting documents, to the family court office. The clerk will then affix the seal on the first page of form 15 and will date and sign the second page of form 15. This process had effectively issued your Motion to Change Child Support. The Clerk will also mark a box on the form which will either specify whether a first court date has been scheduled or no court has been scheduled. Immediately following this your documents become ready to be served.
Keep in mind depending on where your matter is being heard, a first court date may or may not be assigned. If your matter is being heard at the Family Law Branch at the Superior Court of Justice or the Ontario Court of Justice, a first court date will likely be set. However, if you’re matter is proceeding before the Superior Court of Justice, the responding party will need to request a case conference in order to have the motion go forward.
Once the motion has been issued, you are required to serve a copy of the documents on the responding party. The documents which you must serve are:
Form 15 Motion to Change
Form 15A Change Information Form
Form 13 or Form 13.1 (Financial Statement if required)
A blank copy of Form 15B Response to Motion to Change
A blank copy of 15C Consent Motion to Change
You are required to serve these documents by a special service, which implies that the documents must be left either with the person or alternatively with the person’s lawyer. Following successful and valid service, the person who served the documents must fill out form 6B Affidavit of Service and have the filed at the appropriate court.
After the motion to change child support has been served on the responding party, within 30 days of being served they can either complete form 15C Consent Motion to Change or serve on the moving party and file in court Form15B Response to Motion to Change.
If Form 15C is signed then that implies the parties have reached an agreement with respect to the change sought in the original final Order. However, if Form 15B is served on the moving party and filed in court, that implies no agreement has been reached and the parties will further proceed to court to have a Judge make a new ruling in the matter.
We hope that this information has been helpful. If you need to setup a free consultation with a lawyer, you can contact our Family Law Lawyer at 416-792-5400.
Here are some helpful resources that provide more information about Motions to Change Child Support in Ontario:
WHAT IS CHILD SUPPORT IN ONTARIO?
When parents no longer continue to reside with each other, an arrangement is usually made in terms of which parent the children may live with and for how long. Usually the parent with which the children reside most of time is entitled to obtain from the other parent expenses relating to raising the children. This is called child support.
ELIGIBILITY FOR CHILD SUPPORT IN ONTARIO
Payment of Child Support is determined by the living arrangement of the Child or Children. If the child or children live most of the time with one parent, then the other parent must pay. In the event that the parents spend an equal amount of time in rearing the child or children, child support is still payable. In such a situation, the parent with the higher income will normally be required to pay the net difference in the parties respective applicable amounts as specified in the Federal Child Support Guidelines.
HOW IS CHILD SUPPORT IN ONTARIO CALCULATED?
There are Federal, Provincial and Territorial Child Support guidelines that specify how much child support is payable. The amount of child support is usually calculated in relation to the paying parent’s annual income. However, you must first determine which Child Support Guideline is applicable to your situation:
1)If you are divorced or have applied for a divorce then the Federal Child Support Guideline will apply. You can calculate the amount of child support payable under the Federal Guidelines here.
2)If you were never married or were married and are separated (and neither parent has applied for a divorce) then the Provincial or Territorial Child Support Guidelines apply. You can view the Ontario child support tables here.
HOW CAN I GET CHILD SUPPORT IN ONTARIO?
Depending on whether you are entitled to receive Child Support, you can arrange child support to be paid to you in the following ways:
- Online using this Ontario Government Website. You can use this service if you are setting up child support for the first time. Please click here to go the website.
- A written agreement between you and the other parent;
- In accordance with a court Order. If you are faced with an uncooperative parent, you may go to the court to obtain an Order for child support to be paid to you. Please click here for some helpful information regarding filing or changing child support.
HOW IS CHILD SUPPORT IN ONTARIO IS ENFORCED
The Family Responsibility Office is an Ontario Government office that enforces Child Support payments. All Orders for Child Support made by the Courts are automatically filed in the FRO. Separation Agreements may also be filed in the FRO provided they have also been filed in Court.
The Family Responsibility Office collects the child support payments from the payor parent and then either mails a cheque or directly deposits the support payments into the recipient parent’s account.
In the event the payor parent misses support payments there are a number of ways the FRO can collect unpaid payments:
- It may deduct payments automatically from the parent’s wages or income;
- A charge may be registered against the parent’s personal property or real estate;
- It may garnish the parent’s bank account or up to half of joint bank accounts the Parent may have;
- An Order may be made against anyone who is helping a parent hide their income or assets that may go towards unpaid child support.
If a parent continues to not make payments, the FRO may exert pressure on that parent in the following way:
- It may suspend that parent’s driver license;
- It may cancel the parent’s passport;
- The parent may be reported to credit bureaus, making it difficult for them to obtain a loan.
The Family Responsibility Office can collect unpaid payments from across Canada, the US and any other country with which Ontario has an agreement.
Keep in mind that if a change is required to the amount of support payments, the FRO cannot be asked to make that change. If a parent believes a change in support payments is warranted, that change must be reflected in either a new Agreement or you can go before a court and ask to have the support Order changed.
NOTICE AND DISCLAIMER: The material posted on this website is for informational purposes only and should not be relied upon as legal advice. If you are in need of legal advice relating to your particular situation it is highly recommended to consult with a lawyer.