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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.

Family Responsibility Office to Pay $7,500 in Costs for its “Aggressive Enforcement Action” Against Dad

salp

Family Responsibility Office to Pay $7,500 in Costs for its “Aggressive Enforcement Action” Against Dad

In a case called DeBiasio v DeBiasio the father was in arrears on his support payments of $1,800 per month for his three children, one of whom lived with him. Eventually, when the other two children also moved in with him in July of 2015, he started negotiating with the mother to change his child support obligations. Together, they signed a court form in late August asking for a court date for them to formally change the child support on consent.

However, the matter of the father’s arrears had already been sent to the Family Responsibility Office (FRO) for enforcement, and it had started to take the authorized steps to force him to pay. To this end, he received a letter from a FRO caseworker around this same time, advising that he was being reported to the Credit Bureau.

This meant that – to the father’s frustration – both the FRO’s enforcement steps and the parents’ court-supervised attempts to settle issues around child support were proceeding in tandem, but independent of each other.

The court motion stalled for unrelated reasons; meanwhile, the father learned that the FRO had taken steps to garnish his wages. When his lawyer wrote to the FRO to advise that the consent motion was pending, the caseworker claimed that her hands were tied since the order to pay child support was still “on the books”. Soon after the father learned that the FRO was taking steps to have his driver’s license suspended. Some of his lawyer’s many attempts to correspond with the FRO directly garnered no response.

Eventually, the father managed to get a court order, directly the FRO to refrain from taking additional steps against him.

The father then asked the court to order the FRO to pay his legal costs – and succeeded.

Here, the court’s task was to balance the FRO’s mandate to enforce all support orders that are filed with it, against the individual interests of the father. Since the Director of the FRO has some leeway in choosing the manner of enforcement in any given situation, the test is whether the Director had exercised that discretion in a reasonable manner in the father’s particular case.

After reviewing a few prior cases in which the Director of the FRO had been ordered to pay costs, the court noted that they tended to arise in cases where there were “aggressive enforcement actions on the part of the FRO” despite the existence of a real and substantial dispute between parties that they had taken steps to resolve with the court. This was precisely the case here. As the court put it:

In this case it was made clear to the FRO caseworker that there was a dispute over the amount of arrears owing. It was made abundantly clear that there had been a material change because of the move of the children. While I understand that FRO has a mandate to enforce, it seems to me that insisting on enforcement by way of licence suspension, when it is likely that the matter will be before the court within a very short period of time, is an unreasonable exercise of the Director’s mandate to enforce.

Having been made aware of the scheduled consent motion, the FRO should have allowed the process to go forward before taking any further enforcement action. Its failure to do was unreasonable. The court also chastised the FRO for failing to provide an adequate level of communication, since it repeatedly failing to respond to the communications from the father’s lawyer. This, the court found, was in breach of the FRO’s duty to provide timely and meaningful responses to paying parents and their lawyers.

The court ordered the FRO to pay the father $7,500 in costs.

For the full text of the decision, see:

DeBiasio v DeBiasio, 2016 ONSC 2253 (CanLII)

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 www.RussellAlexander.com

Defaulting Family Lawyer Sent to Jail for Failure to Pay Support Arrears

jail

Defaulting Family Lawyer Sent to Jail for Failure to Pay Support Arrears

Even having practiced as long as I have, it’s rare to see a support-paying parent sent to jail for non-payment, even though this is one of the enforcement mechanisms available to Ontario courts under the governing family legislation.

But this is exactly what happened in a recent case called Ontario (Family Responsibility Office) v. Adema. And the defaulting parent was a lawyer, to boot.

The 50-year old man was the father of three children by two different mothers. In connection with one of those children, he was $15,000 in arrears, and in connection with the other two, he was $19,500 in arrears. He had also been ordered by the court to provide financial disclosure, and had been warned by the support-enforcement arm of the Family Responsibility Office (FRO) that Default Hearings would proceed if he did not comply with various directives. Despite being granted several extensions by the court, the father never made what was considered adequate financial disclosure and delivered it late in any event. To add insult to injury, he happened to work as a lawyer and practiced family law periodically over the courts of his rather peripatetic career.

The Default Hearing went forward as had been threatened, with the Director of the FRO requesting the court to imprison the man for 90 days in connection with each of the defaults, or until he paid the outstanding arrears. The court agreed that some jail time was necessary, and admonished the father in the following terms:

The payor has had 9 months to show good faith by paying some support.

The payor has preferred his interests ahead of those of his children. His financial statement reveals that he spends $300 per month on alcohol and tobacco, $100 per month on entertainment and $300 per month towards his debts. Yet he is choosing not to voluntarily pay any child support.

The payor did not provide a valid justification for his poor payment history. He presented no plan to pay the arrears. He gave no indication that he would voluntarily make any payments in these cases. He presented as aggrieved that his support obligations are being enforced. He feels that his children have been provided for adequately by their mothers. Why is he being bothered now?

Rationalizing that as a lawyer the father should have “known better” — the court added:

It has become clear that less aggressive enforcement options other than imprisonment have failed. The suspension of the payor’s driver’s licence and passport did not result in support compliance. These default proceedings have had little impact on his payments. The payor was given multiple opportunities to comply with the support and disclosure orders.

The payor knows or should know the potential consequences of his behaviour. It is disappointing that a family law lawyer has acted in such a manner.

The court has limited sympathy for the payor’s predicament. It is reserved for his children who have gone without adequate support and the mothers of those children who have assumed the payor’s support obligations.

The message needs to be sent to the payor that child support orders for his children matter and will be enforced. The default orders shall provide for an immediate committal of the payor for 75 days in both cases or until a portion of the arrears ($3,500 in each case) is paid.

Should court-imposed imprisonment be used more often to enforce the payment of child support? What are your thoughts?

For the full text of the decision, see:

Ontario (Family Responsibility Office) v. Adema, 2016 ONCJ 37 (CanLII)

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 www.RussellAlexander.com

Enforcement of Child Support in Ontario – video

Wednesday’s Video Clip: Enforcement of Child Support in Ontario

In this legal video, we review 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.

 

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.

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 www.RussellAlexander.com.

Enforcement of Child Support in Ontario – video

Wednesday’s Video Clip: Enforcement of Child Support in Ontario

In this legal video, we review 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.

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

• canceling 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.

Husband Reneges on Post-Separation House Transfer – What Do Courts Do About Broken Promises?

taxiShould a Cab Driver Lose His Licence for Failing to Pay Support?

As many of you know, in Ontario the government’s Family Responsibility Office (FRO) is charged with the task of helping enforce spousal and child support orders. To do this, the FRO has been given an arsenal of enforcement mechanisms to be used against the parent in default of a support order – including garnishing wages or income tax refunds, having a lien placed on property, and suspending his or her passport.

But one of the more routine enforcement mechanisms is for the FRO to suspend the driver’s license of the defaulting payor until he or she has paid the support arrears or has satisfied other terms of the support order.

Certainly this adds a significant level of inconvenience to the payor’s life, and likely provides a very effective incentive for paying arrears and support. But what happens if that person relies on being able to drive, as a means of earning his or her livelihood?

This was precisely the quandary in the recent Ontario decision in Dumais v. Dumais. There, the father had been ordered to pay about $300 in monthly child support, based on his income. However, he never voluntarily paid that support and quickly fell into arrears which over time totalled about $40,000. The mother applied to the FRO for assistance to enforce the support order and collect the arrears.

The matter came before the court when the father asked to have the arrears rescinded, and to have his support reduced to zero. In this context, the court had to consider whether the FRO’s suspension of the father’s driver’s license was reasonable in the circumstances.

The court observed that if it allowed the license suspension to continue, then the father would lose his job as a taxi driver and have no source of income whatsoever. This, the court found, was counter-productive and moreover would prevent the father from driving to exercising access to his child (who was in the custody of the mother).

Instead, the court arrived at something of a compromise: Rather than allow the FRO to suspend the father’s license for arrears – which it said would be “catastrophic” – it essentially suspended the FRO’s suspension in connection with the arrears only. The father was not totally off the hook, however: Any going-forward support would still be subject to the FRO’s enforcement mechanisms. The husband’s support obligations were reduced slightly, to $267 per month, based on his most recent income levels.

Dumais v. Dumais, 2013 ONSC 5949  http://canlii.ca/t/g0q8x

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 www.RussellAlexander.com.

Is the Family Responsibility Office Culpable for its Screw-Ups?

 

 shrug

Is the Family Responsibility Office Culpable for its Screw-Ups?

In a prior blog Top 5 Tips for Dealing with the Family Responsibility Office I gave some tips on how to effectively deal with the Family Responsibility Office (FRO), which is charged with encouraging and enforcing timely payment of court-ordered support in Ontario.

The experience of having the FRO involved comes with its hassles: My clients often complain of delays, confusion, and frustration in dealing with the FRO whether they are on the paying or the receiving side of the equation. Part of this is likely systemic: the FRO reports handling about 180,000 cases each year, and as a government body is hampered by all the red-tape that seems to inherently afflict bureaucratic offices.

But the recent Ontario decision in Ashak v. Ontario (Director, Family Responsibility Office) offers the unexpected – and one might say refreshing – possibility that the FRO could be held liable for its inefficiencies and mistakes, whatever their origin.

There, a support order that had been filed with the FRO obliged the husband to pay child and spousal support to his former wife. Rather than pay, he left the country, most likely fleeing to Iraq where there was no agreement between that country and Canada to reciprocally enforce these kinds of support orders. The wife was forced to turn to social assistance.

Fortunately, at one point the husband returned briefly to Ontario; at this point the FRO, in conjunction with the federal government, was able to confiscate his passport using its power under Canadian support-enforcement legislation.

Yet it all went wrong for the wife a few months later: despite the fact that the husband filed some questionable documentation in support of his bid to have the passport reinstated, the FRO inexplicably authorized the federal government to take that step anyway. This allowed the husband to abscond from Canada once again, still not having paid any support. He is not expected to be seen in Canada again.

The wife then took an unusual step: she sued the FRO for (among other things) gross negligence and breach of fiduciary duty in its handling of her case. The FRO asked the Ontario court to summarily dismiss the wife’s claims against it, claiming the wife has no standing as a private citizen to sue a government body.

The court dismissed the FRO’s application. Perhaps surprisingly, it concluded that the FRO “owes a duty of care to the public generally.” A person in the wife’s position, who had an active file and who had been proactive in providing the FRO with information, had been negatively impacted by the FRO’s mistake. The economic harm she and her children suffered was foreseeable: Had the FRO done its job correctly, the husband would not have had his passport returned, and the wife would have been able to get her support order enforced against him.

The matter was ordered to proceed to trial; that hearing will involve consideration of the FRO’s proper standard of care. I will report on that decision as soon as it is handed down.

For the full text of the decisions, see:

Ashak v. Ontario (Director, Family Responsibility Office), 2012 ONSC 1909 http://canlii.ca/t/frqmq

Ashak v. Ontario (Family Responsibility Office), 2013 ONCA 375 (procedural decision) http://canlii.ca/t/fxsjq

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 www.RussellAlexander.com.

Enforcement of Child Support in Ontario

Wednesday’s Video Clip: Enforcement of Child Support in Ontario

In this we discuss 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.

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