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:
SEPARATION AGREEMENT IN TORONTO
What is a Separation Agreement?
If you are contemplating a separation or are separated from your spouse or common-law partner, a domestic contract known as a ‘separation agreement’ may be drafted to make arrangements for issues such as:
- Division of Property (i.e. who gets to keep the car);
- Spousal support/spousal support releases and child support;
- The living arrangement of the children (i.e. custody and access).
- Parenting plans (i.e. religious issues, educational matters, travel etc.)
- Debts, pensions, medical/dental benefits, life insurance.
It is inadvisable to simply have a verbal agreement between two separating partners as it may be highly difficult to prove verbal agreements before a court of law.
A separation agreement Toronto is not a requirement to getting separated or obtaining a divorce. It primarily serves to provide definition and clarity in what can be a highly confusing and stressful situation. You do not need a lawyer to draft a separation agreement as long as it is signed by both parties in front of a witness and dated.
However, while you do not formally need a lawyer to draft a separation agreement in Toronto, it is highly recommended to retain a lawyer to draft a separation agreement as determining spousal rights and responsibilities upon the break down of a relationship maybe a highly complex task. Your lawyer will navigate you through the process to ensure you fully understand your rights and obligations under the separation agreement and that the separation agreement is clear, complete and legally enforceable.
If you cannot agree on the contents of the separation agreement, you may also choose to go to a mediator who will then mediate the issues you and your spouse or partner are facing and then try to come to solution that is agreeable to both.
INDEPENDENT LEGAL ADVICE AND SEPARATION AGREEMENTS
One lawyer cannot act for both parties who are in need of advice in respect of advising on the contents of a separation agreement in Toronto. The parties must obtain their own independent legal advice. The reason for this is that a lawyer cannot fairly represent parties whose interests are not aligned. As is often the case in family law litigation, there are significant difference of opinions when determining rights and responsibilities of the parties involved. Therefore, independent legal advice becomes vital before signing a separation agreement.
It is also advisable to obtain and execute an Independent Legal Advice certificates so that in the future, a party will be unable to claim that they did not understand the content of the separation agreement making it unlikely for the court to set aside the separation agreement in Toronto on that basis.
WHAT IS CONSIDERED A LEGALLY ENFORCEABLE SEPARATION AGREEMENT IN TORONTO?
Section 56(4) of the Family Law Act provides that a separation agreement will be found legally enforceable if all three criteria were present at the time the agreement was executed:
- significant assets and significant liabilities of both parties were disclosed at the time the agreement was made;
- both parties understood the nature or consequence of agreement made;
- the agreement was made in accordance to the law of contract. (i.e. the agreement will not be legally enforceable if it contains terms that are illegal)
CAN A SEPARATION AGREEMENT BE SET ASIDE?
The Family Law Act grants the court the power to set aside or nullify a Separation Agreement or any clause in that contract if:
- a spouse failed to disclose to the other significant assets, significant debts or other liabilities that existed when the Separation Agreement was made;
- if a spouse signs an agreement while being forced, coerced or under duress
- if a spouse did not understand the nature or consequences of the Separation Agreement; or
- if the Separation Agreement was not prepared in accordance with the law of contract.
Before you sign a separation agreement you must understand that the decisions made in this agreement will effect your future and your children’s future. A legally valid separation agreement must be abided by and will likely be upheld in a court of law in case of dispute. Therefore it is utmost important and best to have it created by and reviewed by a lawyer to ensure the protection of your rights.
Here is a list of helpful resources that you may review when deciding whether a Separation Agreement in Toronto is right for you:
Divorce and Separation
What you should know about Family Law in Ontario
What are my rights when separating?
Family Law Information Centres
Helping Children Cope
Collaborative Family Law
Court Locations and Addresses in Ontario
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.