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10 Things You Should Know About Ontario Child Support in 2019

One of our most popular articles 10 Things You Should Know About Child Support was published nearly ten years ago in 2010. We challenged ourselves to provide deeper information for each topic. Family law can be a very tricky terrain to navigate. Understanding one’s responsibilities with respect to child support raises a lot of questions for parents and guardians, which we hope to outline and answer here.

father and child hands

  1. What is 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.

Learn more about Child Support:

Common Questions About Child Support in Ontario

Child Support in Ontario: An Introduction to Child Custody

Introduction to Ontario Child Custody: How do Decisions Get Made

Child Support 101: The Details of Ontario Child Support

 

  1. Parents and Guardians

Parent or guardian 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.

Learn more about Parents and Family Law:

Ontario Custody and Access: Who is Entitled to the Child?

Ontario Child Custody: Who is Considered a Parent?

When a Non-Parent Wants Custody of a Child

 

  1. Who Pays Child Support

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.

Learn more about the legal responsibility to pay child support:

Who Pays Child Support in Ontario?

Top Four Questions About the Children of Common-Law Relationships

Can an Ontario Support Agreement or Order be changed?

Business Owners Beware: Court Can Force Your Hand to Compel Appropriate Child Support

Can a Parent Replace Child Support…with Gifts?

 

  1. 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.

Learn more about application:

• Video: When Can a Parent Apply for Child Support?

• Video: When do the Child Support Guidelines Apply?

 

  1. 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 circumstances and criteria can terminate responsibility of child support:

  • the child has married;
  • they are 16 or older and have voluntarily left parental control;

There are 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;
  • 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.

Learn more about criteria for child support:

Does the Age of the Child Affect Child Support in Ontario?

What Happens if Kids Skip School?

How Long Does Child Support Continue in Ontario?

 

  1. What is a Child Support Agreement?

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 such as:

  • 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.

Learn more about paying for child support:

• Video: Ontario Child Support: How do you arrange for Support to be paid?

• Video: How Base Child Support is calculated

• Video: How are Child Payments Taxed?

 

  1. 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.

Learn more about Child Support and Access:

Can parents be kept from seeing their children if they do not pay their child support?

Child Support and Access Rights in Ontario

 

  1. 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.

Learn more about child support enforcement:

• Video: Enforcement of Child Support in Ontario

The Role and Power of FRO

 

  1. How Can FRO Collect Child Support?

The FRO (Family Responsibility Office) 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.

Learn more about the FRO:

Top 5 Facts About the FRO

Top 5 Tips for Dealing with the Family Responsibility Office

 

  1. 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.

FRO can be contacted by calling 1-800-267-7263 or you can also visit their website.

Learn more about reducing child support:

Varying Child Support – How long is Too Long to Wait

Could Trucker Dad Avoid Child Support Due to Dizziness?


Russell Alexander Collaborative Family Lawyers has been providing answers and solutions to child support questions for over twenty years. If you need assistance determining whether you should be receiving child support for your child or collecting your support from the other parent, or if you believe that you should no longer be paying child support, we are here to help.

Court Comes Down Hard on Self-Represented Wife – And Orders $150,000 in Costs Against Her

Image result for judge ruling

Court Comes Down Hard on Self-Represented Wife – And Orders $150,000 in Costs Against Her

On a recent ruling to allocate costs of the litigation between a former couple that lasted almost two decades, the court had some pointed comments about self-represented litigants in general, and about the wife’s unreasonable conduct in the case, specifically.

The court began its judgment this way:

A New Year

It is 2019, and Ian and Katherine Kirby, after 17 years, have a Final Order in their marathon matrimonial struggle.

There is one more battle to fight, however – costs.

The Judgment

The trial, more like a sentence than a sojourn, lasted ten days.  Katherine acted for herself, and she is responsible for much of the prolongation of the hearing.

Although the divorce itself was agreed upon, the court listed the many specific legal issues that needed to be resolved through litigation between the former couple.  Each spouse had been successful on some issues and not others, and some had garnered only “mixed” success.  Overall, however, the court concluded that the husband was more successful in the outcome than the wife, and that he was more deserving of costs.

The court then made some general comments about self-represented litigants:

The proliferation of self-represented litigants in family law cases is here to stay.  I suspect that there are many reasons for that: cuts to legal aid services, the self-help resorted to on the world wide web, and (let us not be so naïve to ignore) the voluntary choice by some litigants to act for themselves because they think that the judge will be forced into being their advocate.

With respect to the latter category of self-represented litigants, it is time that we recognize that there are some (not most, maybe even not many) persons who can readily afford legal counsel but simply choose to act for themselves because they think that it will provide them a tactical edge in the courtroom.  It will cause the presiding judicial official to go overboard with assistance, not just procedurally but substantively, or so goes the rationale.

There is nothing wrong with self-representation.  What is wrong, though, is hijacking the proceeding at the expense of the other side (who has counsel) and then expecting mercy from the court when it comes to deciding costs.

We do not have two sets of rules and principles for costs in family litigation – one for those who hire lawyers and one for those who act for themselves.

It then elaborated on what a court’s guiding principles are when awarding costs:

The principles apply to both types of litigants: (i) in deciding entitlement to costs, consider the presumption that a successful party deserves some costs, and consider the factors outlined in the Family Law Rules, and take into account any other relevant circumstance; (ii) in deciding quantum of costs, remember the basic tenet that the goal is to achieve something that is fair, just and reasonable, and keep in mind the prudent expectations of the parties, and pay attention to the importance of proportionality, and assess (but do not dissect line by line) the reasonableness of the time spent and the fees and disbursements charged.

The court added:

Above all, place some emphasis on why we award costs to begin with – to partially indemnify successful litigants, and to encourage settlement (even where the final result was worse than what the party offered to settle for), and to sanction and deter inappropriate conduct by litigants (even behaviour that falls short of “bad faith”).

The process by which we decide costs is not science.  It is more artful than that.  Consequently, there is an inescapable degree of arbitrariness to any costs award.  To pretend otherwise, I respectfully suggest, is a little rich.

The court then examined the spouses’ respective conduct during the course of the litigation.  In fairness, it noted that both spouses were responsible for the fact that the file languished for years and years. But it credited the husband for making greater efforts to settle without a trial, for being better prepared, and for behaving “much more admirably during trial”.

On the other hand, the wife’s conduct was unreasonable:  She made late-breaking “wild allegations” of being raped by her husband, and failed to comply with prior orders.  Even her submission on costs was filed late, after being granted an extension, and it did not comply with the court’s express directions on its length.  (The court read it nonetheless, as a courtesy).

As the court summed it up:  “She single-handedly caused the hearing to be significantly longer than it should have been” and her conduct in the past two years or so was “worthy of serious condemnation by this Court”.

It concluded that the case “ought to have never went to trial,” and that “awarding to [the husband] every cent of the $190,438.63 is in the cards”.

However, the court noted that the wife is “indeed, mentally ill”, a fact confirmed by the family physician’s evidence, and surmised that some of her unreasonableness is due to her psychological issues.  Concluding that this militated against awarding the husband his full costs, the court reduced the total to an even $150,000, all-in.  Those costs were to be immediately deducted from the wife’s share of the proceeds of the matrimonial home.

For the full text of the decision, see:

Kirby v. Kirby, 2019

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

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