Divorce: Modifying Child Support

Similar to a separation agreement Ontario, divorcing parents may consider drafting a child support agreement. When the parents decide on a child support agreement it is of utmost importance that the agreement be put in writing and must be signed by both parents. When deciding the child support amount, it is helpful to take into consideration what the court takes into consideration – the child’s interests. Further, you can consider how much child support a judge is likely to order in your situation. Judges base their decision of the child support amount on Child Support Guidelines that are set out in Federal Child Support Guidelines which are regulations under the Divorce Act. This article will discuss modifying or changing child support.

In Ontario, child support can be changed if there is a significant change in circumstances. It must be noted that at some point after the divorce people’s lives will change and the needs of children will also change hence the need to modify or change child support. This will thus result in a change in child support orders and agreements. Such changes help to ensure that the support orders and agreements stay fair always.

Some significant circumstances that can lead to the modification of child support can be described by the scenarios below:

  • Ted is paying child support to Annie for their son Jacob.
  • Ted loses his job and can no longer pay the child support that was agreed upon
  • Ted receives a substantial raise in his income
  • Jacob finishes school, gets married or moves out to live on his own
  • Jacob is working full time
  • Jacob decides to go and live with his grandmother
  • Due to an incident Jacob is now in need of new special or extraordinary expenses

There are a number of ways parents can change the existing child support arrangements. Some ways of changing or modifying child support include the following:

Make a new agreement – If both parents agreed to change the child support they can make a new agreement. This new agreement must be drafted, dated and signed by both parents as well as by a witness. If the new agreement changes the terms of the old agreement that was filed with the court, then this new agreement should also be filed in court. One advantage of filing the new agreement in court is that it allows the Family Responsibility Office to enforce the new agreement and support amount. If the new agreement changes a final court order, then the parents need to ask the court to change the order in accordance with the new agreement.

Court order – If the parents cannot agree then either parent can ask the court to change child support. The court will only change the child support order if there has been a significant change in circumstances, for example:

  • the payer’s income has gone up or down
  • the child has left the parent home voluntarily
  • the child has moved from one household to another
  • the child is no longer in daycare or full time school

Motion To Change Child Support

Motion To Change Child Support Ontario

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:

  1. The payor spouse is making less or more money since the final Order was made;
  2. The receiving child is now self-sufficient in terms of financial support; and
  3. 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:

How to bring a motion to change
How to vary a child support order
Filing or change support payments 
Consent Motion to Change

Child Support in Ontario

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:

  1. It may deduct payments automatically from the parent’s wages or income;
  2. A charge may be registered against the parent’s personal property or real estate;
  3. It may garnish the parent’s bank account or up to half of joint bank accounts the Parent may have;
  4. 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:

  1. It may suspend that parent’s driver license;
  2. It may cancel the parent’s passport;
  3. 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.

Uncontested Divorce in Ontario

Divorce Lawyer Toronto

When filing an uncontested divorce in Ontario, there are two types of uncontested cases:

Uncontested Sole Divorce: When both spouses are in agreement about the divorce and do not oppose the divorce, either the husband or wife files the divorce papers with the court asking for the divorce. Once the papers are filed with the court, your spouse is served with the divorce papers. Your spouse then has 30 days to contest or challenge the divorce, or make a claim such as for support, property, custody, etc. If your spouse does not challenge the divorce within the required period, the divorce will proceed as “uncontested” and will be finalized by the Ontario court.

Uncontested Joint Divorce: The second way to proceed is to file a joint divorce. In this type of filing, both the husband and wife sign and swear the divorce papers, including the Affidavit of Divorce. Neither spouse is suing the other for divorce – you are simply asking the Ontario court to grant a divorce based on separation. In a joint divorce application, spouses can also jointly ask the court to include an order relating to custody, access, support if both spouses agree to the terms. Couples prefer filing a joint divorce because filing in this manner does not require serving divorce documents on the other spouse.

Divorce Time Frame: The time that it takes to process an uncontested divorce in Ontario varies based on a number of factors. One of these factors may be the courthouse in which your divorce papers are filed. Family courts across Ontario vary in the time they take to process applications. However, as a general time frame, if all the necessary steps are taken and the documents are filed on time, it takes about 2 to 3 months to process the entire uncontested divorce in Ontario.

Clearance Certificate: Once the 8A application for divorce is filed, a document called the “clearance certificate” is sent from the Central Registry of Divorce Proceedings located in Ottawa, Ontario to the courthouse in which the divorce application is filed. This Registry keeps nation-wide records of divorce applications filed after July 2, 1968. If there is another divorce application involving the same two spouses, the Registry lets the courts know. If there are no other divorce applications involving the two spouses, the clearance certificate is sent and the divorce process moves forward. For more information about the Central Registry, you can click here.

I hope we were able to give you some of the information you required in order to make your decision about the type of divorce in Ontario that you will be filing. Whether you are filling a sole divorce or a joint divorce, our Family Lawyer can process your case or guide your decisions. Here is a link to recent publications about Family Law on the Department of Justice website.

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.