10 Things You Should Know About Child Support in Ontario 2021
- How Covid-19 and Pandemic Affects Child Support
The pandemic has wiped out many industries and parents have lost their jobs. A loss of employment could cause a change to the quantum of child support that the support payor is required to pay. Parents need to be reasonable and accommodate requests to adjust child support in light of the economic impact of the pandemic. If you are seeking to either change child support obligations, it is important that you provide written notice and supporting documentation to the other parent. FRO (family responsibility office) will only enforce court orders or written agreements. If the other parent dos not agree to change child support, then you may need to go to court to ask the judge for a new order. Child support is ordinarily paid on a parent’s current income, but if you worked for part of the year and recently lost your job, your estimated annual income for the entire year will be taken into account when adjusting child support.
- Child Support
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.
- Parents and Guardians
Parents or guardians can be the birth mother or father, an adoptive parent, or step-parent 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.
- Child Support and Who Pays it
Child Support is the legal responsibility of parents or guardians to provide financial support for all dependent children. When there is an arrangement in which a child lives primarily with one of the parents or guardians, they are assumed to have “custody” of that child and bear the day-to-day expenses of raising them; however, they 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.
- When to apply for Child Support?
Applying for child support is usually done right after separation or when applying for a divorce but can be applied for at any time thereafter. It is usually best to deal with these matters as early as possible and when sorting out the custody of the children. In the beginning, parents and guardians may feel they don’t want or need the support but as time goes on and the expense of raising children increases the need may arise at which time they can apply, even after divorce or settlement of matters arising from the separation have been dealt with. Under some circumstances the court has awarded custody and support while the parents or guardians are living separately under one roof but the court usually doesn’t make an order until one of the parents or guardians have physically moved out.
If the social and emotional relationship between the step-parent and child have disbanded for a lengthy period of time, it is less likely that the court would order the step-parent to pay child support.
- When does Child Support End?
Child support must be paid if a child is still a dependant and they are under 18 years of age. However, the following are circumstances and criteria that can terminate responsibility of child support:
- the child has married; and
- they are 16 or older and have voluntarily left parental control.
There are also situations where even if the child has turned 18 years of age they are still considered a dependant. For instance, any situation where the child is unable to support themselves due to any of the following:
- they have a disability or illness; and
- they are attending school full-time.
In a situation where the child is 18 years of age or older and is living away from home because they are attending school, child support may have to be paid if the child’s primary residence is with the parent with custody. This circumstance usually requires child support to be paid until the child is 22 or receives a post-secondary degree or diploma.
In some of these situations, a judge can order the child support to continue past this point. If the judge decides child support must be paid past the age of 18, they will take into consideration how much the child has in earnings or income before determining the amount of child support to be paid.
- How Child Support is Paid
How the child support is paid and how much is paid is determined with a Support Agreement. There are three different ways parents can obtain a Support Agreement which are detailed below
- In a situation where the parents can work together to form a Support Agreement, it is encouraged that they look at the Child Support Guidelines to find out the amount a judge would likely order. The paying parent will have to give complete and true information about their income. It is suggested that one parent should have a lawyer put the agreement in writing and that the other parent get a different lawyer to review it before signing it. This way both parents will know the agreement says what they intended it to say, while also protecting their rights and their children’s rights.
- If the parents need help working out a Support Agreement then they can see a mediator who will help them come to an agreement they both can accept. The mediator is an unbiased party that does not offer legal advice. In this situation it is still recommended that the agreement is reviewed by both parent’s independent lawyers before signing, and filing with the court.
- If the parents cannot agree on a Support Agreement then both parents should hire their own lawyer. The lawyers can then attempt to negotiate support terms that both parents can agree upon. If no agreement can be reached, then they will go to court and ask a judge to determine support. The judge will then make a court order that states how much child support is required to be paid.
- Access When Child Support is Not Paid
Even if child support is not paid, a parent should not keep the child from seeing their other parent. It is assumed that it is generally good for a child to have a relationship with both parents. Keeping the child from seeing their other parent is considered punishing the child and the law will not punish the child due to their parent failing to pay child support.
Parents who do not have custody are usually given “access” to the children so that they can spend time together and maintain their relationship. The only way access can be refused or limited, is if the parent’s behaviour is likely to cause harm to the child, or harm the child in anyway. The courts will not refuse access because the parent fails to pay child support, and the parent with custody should not refuse access for this reason either. There are ways to obtain child support from a non-paying parent without refusing access.
9. 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.
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. 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.
- How to Reduce Child Support
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.
Some Final Thoughts
Divorce can be an arduous journey, especially while we are in the midst of a global pandemic. This past year has brought new challenges and changes to the family court landscape.
We aim to provide our community with helpful tools and resources to support them in navigating family law matters. With this in mind, we have launched a bi-weekly free webinar series – How to Divorce During the Pandemic – dedicated to keeping our community informed on the current state of Ontario Family Courts, how to navigate separation and child support matters during the COVID-19 pandemic, and what to expect going forward. We also have two free e-books available: Divorce and the Coronavirus Pandemic and Child Access and Custody During the Pandemic.
Additionally, we have a number of free online articles that have been created to provide parents and guardians with a better understanding of their responsibilities with respect to child support.