All dependent children have a legal right to be financially supported by their parents. When parents live together with their children, they support the children together. Parents who do not live together often have an arrangement in which a child lives most of the time with one parent. That parent is said to have custody of the child. This arrangement can be written in a separation agreement or court order (sometimes called legal custody), or may occur without a written agreement or court order (sometimes called “de facto” custody). Either way, the parent with custody has the main responsibility for the day-to-day care of the child and has most of the ordinary expenses of raising the child. The other parent should help with those expenses by paying money to the parent with custody. This is called child support.
A parent can be the birth mother or father, an adoptive parent, or a step-parent. step-parent is anyone who has been married to someone with children, or who has lived as a couple with someone with children, and who has shown an intention to treat those children as members of his or her own family.
Who pays child support
All parents have a legal responsibility to support their dependent children to the extent that they can. A parent with custody usually has most of the day-to-day expenses of child-raising, and may be entitled to receive child support from the other parent. This entitlement to child support may continue even if the custodial parent remarries or starts to live with someone else.
The amount of child support is usually set according to the Child Support Guidelines. More than one parent can have a legal duty to pay child support for the same child. For example, if a parent with custody of a child separates from their marriage or common-law spouse who is not the child’s birth parent, both the child’s other birth parent and the step-parent may have a legal duty to pay child support. A biological father has a legal duty to support his child financially even if he has never been married to, or lived with, the child’s mother. This is true even if he never had an ongoing relationship with the mother. If a man denies that he is the biological father of a child, the court can order him to have a blood test to determine whether or not he is.
Child support must be paid as long as a child remains dependent. A dependent child is any child under the age of 18, unless:
• the child has married, or
• the child is 16 years of age or over and has voluntarily withdrawn from parental control Child support might also continue after a child turns 18 years of age if the child is unable to be self-supporting because he or she:
• has a disability or illness, or
• is still going to school full-time.
Even if the child is not living at home while going to school, as long as the child’s primary residence is with the parent with custody, the parent without custody might have to continue to pay child support. This usually continues until the child turns 22 years of age or gets one post-secondary degree or diploma. In some circumstances, a judge might order support to continue even longer.
When deciding how much support should be paid for a child who is 18 years of age or older, the judge will take into account any earnings or income the child receives from other sources.
When to apply for child support
Parents who have their children living with them after separation can apply for child support at any time. Usually they apply right after they separate or as part of their divorce application. They often apply for custody and child support at the same time. It is usually best to deal with these matters as early as possible. Sometimes parents with custody do not want or need child support at first, but later their situation changes. They can apply for child support when the need occurs, even after a divorce and all other matters arising from the separation have been settled.
But if a step-parent is asked to pay support, the more time that has passed since the step-parent had an ongoing relationship with the child, the less likely it is that the court will order support payments. This is especially true if the step-parent’s social and emotional relationship with the child has ended. A parent can apply for custody and support even while living separately under the same roof after their relationship with the other parent is over. But usually the court will not make any order for custody and support until one parent has actually moved out.
How child support is paid
Some parents are able to work out a support agreement on their own. They can use the Child Support Guidelines to find out how much support a judge would probably order. The paying parent will have to give true and complete information about his or her income. One parent should get a lawyer to put the agreement in writing. The other parent should get a different lawyer to check it. That way, each parent will be able to make sure the agreement says what they intended, and that it protects their rights and their children’s rights, before they sign it.
Other parents need some help to work out a support agreement. They can go to a mediator who will meet with both of them and help them work out an arrangement that they both can accept. The mediator does not offer legal advice. An agreement reached with the help of a mediator should still be taken to each parent’s lawyer before they sign it. Then it should be filed with the court.
Parents who cannot agree about support payments should get legal help. Each parent should hire a separate lawyer. The lawyers may be able to negotiate support terms that are acceptable to both parents. If not, they will go to court and ask a judge to decide. The judge will make a court order saying how much child support must be paid.
Access when child support is not paid
A parent should not keep another parent from seeing their children even if child support is not paid. The law assumes that it is usually good for a child to have a relationship with both parents. Keeping a parent from seeing his or her child is considered punishing the child. The law will not punish a child because his or her parent fails to pay child support.
The law gives parents who do not have custody “access” to their children so they can spend time together. Access can be refused or limited only if the parent’s behaviour is likely to harm the child. The courts will not refuse access because the parent does not pay support. And the parent with custody should not refuse access for this reason. There are other ways to get support from a non-paying parent.
Enforcement of child support in Ontario
Enforcement in Ontario is done through a provincial government office called the Family Responsibility Office (FRO). The court automatically files all support orders made after July 1, 1987 with the FRO. Separation agreements can also be filed there if they have been filed with the court and then mailed to the FRO.
The parent who is to pay support is told to make all support payments to the FRO. When the FRO receives a payment, it sends a cheque to the parent with custody, or deposits the money directly into that parent’s bank account. It only does this after it has received the money from the paying parent.
If a payment is missed, the FRO takes action to enforce the order or agreement. To do this, the FRO needs as much up-to-date information about the paying parent as possible. This includes his or her full name, address, social insurance number, place of employment or business, income, and any property he or she owns. The information about the paying parent goes on a Support Deduction Information Form which is available at the court. This form is given to the FRO along with the support order or agreement. It is important to update this form whenever the information changes.
The FRO uses different ways to get the payments that are owed. It can:
• get the payments directly from the parent who is supposed to pay support
• have the payments automatically deducted from the parent’s wages or other income (other income includes things like sales commissions, Employment Insurance, Workers’ Compensation, income tax refunds, severance pay, and pensions)
• register a charge (a lien) against the personal property or real estate of a parent who fails to pay the support that he or she owes
• garnish (take money from) the bank account of a parent who fails to pay support
• garnish up to 50% of a joint bank account that he or she has with someone else, or
• make an order against another person who is helping a parent hide or shelter income or assets that should go toward support
The FRO can put more pressure on parents who do not make their support payments by:
• suspending their driver’s licences
• reporting them to the credit bureau so that it will be difficult for them to get loans, or
• cancelling their passports.
Once the order or agreement is filed with the FRO, then it is the FRO, not the other parent, that is responsible for any actions taken to enforce it.
Sometimes parents receiving support withdraw from the FRO because it is easier to receive payments directly from the other parent. But if problems arise later, and they want to re-file with the FRO, they might have to pay a fee to do this.
Parents who have an obligation to pay support should also know that the FRO cannot change the amount that the order or agreement says they have to pay. If they think that a change in their financial situation justifies a reduction in the amount of support they should pay, they must get a new agreement or go to court to get the support order changed.
FRO can be contacted by calling 1-800-267-7263 or you can also visit their web site at www.mcss.gov.on.ca/mcss/english and click on “Family Responsibility Office”.
Additional information about child support and related issues can be found at www.russellalexander.com