Spousal Support

Every parent has a legal duty to support their dependent children. This includes parents who are separated, divorced, or who have never lived together. A parent can be the birth mother or father, an adoptive parent, or sometimes a stepparent.

A stepparent is someone who has treated their spouse’s children as members of their own family. It does not matter if the spouses were legally married to each other or living common-law. But the more time that has passed since the stepparent had an ongoing relationship with the child, the less likely it is that the court will order the stepparent to pay child support. This is especially true if their social and emotional relationship with the child has ended.

More than one parent could have a legal duty to pay child support for the same child. For example, if a child’s birth parent and stepparent separate, the other birth parent and the stepparent might both have to pay support for the child.

A biological father has a legal duty to support his child financially. This is true even if he was never married to, lived with, or had an ongoing relationship with his child’s mother. If a man denies that he is the biological father, a court can give him a chance to have a blood or DNA test to find out. If he refuses, a court may assume that he is the biological father.

Canada has established Federal Child Support Guidelines that provide a formula for determining appropriate support payments. These guidelines are based on the number of children to be supported, the province in which the paying parent resides, and his or her yearly income prior to taxes. Information is also provided as to how special circumstances or expenses may affect support payment amounts.

The amount of child support is generally based on these Guidelines unless the parents agree to something different. Parents who reach an out-of-court agreement about support do not have to apply the Guidelines. But they should look at the Guidelines before deciding how much support will be paid. If they do not apply the Guidelines, their agreement should say why not. If the court is later asked to consider the amount of support, the judge can change the amount to reflect the Guidelines.

The Child Support Guidelines have a Child Support Table for each province and territory. The Table shows the monthly amounts of support to be paid, based on the “gross income” of the payor parent and the number of children being supported. Gross income means before taxes and most other deductions. It is usually the amount on line 150 of the parent’s income tax return.

In simple cases, the Table determines how much money will be paid. In more complicated cases, the Table is used as the starting point for deciding the amount of support.

The Child Support Table for each province and territory varies. If both parents live in Ontario, the Ontario Table applies. If the payor parent lives outside of Canada and the other parent in Ontario, the Ontario Table applies. If the payor parent lives in another Canadian province or territory, the Table for that province or territory applies.

Sometimes a judge will not accept the stated income of the payor parent. Instead, the judge may use an income amount that is reasonable based on factors such as the parent’s work history, past income, and education. The judge will then apply the Table to that income.

A judge might do this if the parent:

• fails to provide the required income information,
• is unemployed or underemployed on purpose, or
• is self-employed or working “under the table,” and there is reason to believe the parent does not report all of his or her income.

Payor parents are required to provide detailed information about their income within 30 days after a support application is made. If the income of the other parent is also considered when determining support, that parent must provide the same information.

Examples of information that must be provided include:

• income tax returns,
• statements of earnings from employers,
• financial statements if the parent owns a business, and
• notices of assessment and reassessment.

If support is ordered by the court, the parent who had to provide financial information must update this information if the other parent asks. The other parent can only ask for an update once a year.

If support is included in a separation agreement, it is a good idea for the parent receiving support to make sure the agreement says the other parent must update their financial information each year.

Some parents are able to work out a support agreement on their own. They can use the Child Support Guidelines to see how much support a judge might order. It is recommended that one of the parents has a lawyer put the agreement in writing and that the other parent uses his or her own separate lawyer to review it. That way parents can ensure that the agreement says what they meant and that it protects their rights and their children’s rights.

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 both parents accept. If not, they can go to court and ask a judge to decide. The judge will make a court order saying how much child support must be paid.

An Ontario government office called the Family Responsibility Office (FRO) can enforce support payments. The court automatically files all support orders with the FRO. Separation agreements can also be filed there if they have been filed with the court. The FRO tells the payor parent to make all support payments to the FRO. When the FRO receives a payment, it sends a cheque to the other parent or deposits the money directly into that parent’s bank account.

If any payments are missed, the FRO takes action to enforce the order or agreement. To do this, the FRO needs up-to-date information about the payor parent. This includes his or her full name, address, social insurance number, place of employment or business, income, and any property owned. The parent receiving support puts this information 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.

Sometimes parents receiving support withdraw from the FRO because it is easier to receive payments directly from the other parent. If problems arise later, however, and they want to re-file with the FRO, they might have to pay a fee.

The FRO has different ways to collect unpaid support from payor parents. It can:

• have the payments automatically deducted from their wages or other income (for example: sales commissions, Employment Insurance, Workers’ Compensation, income tax refunds, severance pay, and pensions),
• register a charge (a lien) against their personal property or real estate,
• take money from (garnish) their bank account or garnish up to half of a joint bank account that they have with someone else, or
• make an order against anyone who is helping them hide income or assets that should go toward support.

The FRO can also put pressure on parents who do not make their support payments by:

• suspending their driver’s license,
• reporting them to credit bureaus so that it will be difficult for them to get loans, or
• cancelling their passports.

The FRO can help collect money from a payor parent who lives in Canada, the United States, or another country with which Ontario has an agreement. If Ontario does not have an agreement with the country where the payor parent lives, the FRO cannot help you collect support.

The FRO cannot change the amount that the order or agreement declares the payor parent must pay. If either parent thinks that a change in the situation justifies a modification in the support amount, they can try to get a new agreement or go to court to try to get the support order changed.