Changes in Child Support and/or Spousal Support in a Temporary Court Order
If there is a “temporary” court order (also referred to as an “interim order”) that provides for child support or spousal support (a “support order”), then only a judge can change the amount of support that has to be paid. A temporary support order is made by a judge before a trial in a family law proceeding as an interim measure either after a motion or on “consent” of both parties (which will usually be adjusted at trial if there has been an overpayment or underpayment if requested by the parties and there is evidence to support an adjustment before the court). Only a judge has the authority to change the amount of child support or spousal support that must be paid under a temporary support order.
If both parties agree to change the amount (or ending) support in a temporary order then a 14B motion (also referred to as a “paper motion”) can be served and filed at court requesting the change in the court order on “consent” of the parties, which will usually be granted by a judge in chambers (i.e., the parties do not have to attend court in person). If only one party wants to change the amount of support in a temporary order, he or she must bring a motion before the court and provide evidence justifying the need for the change. In order to be successful on a motion to vary a temporary support order, a party must establish there has been a substantial change in circumstances since the previous temporary order was made (see Lipson v. Lipson, 1972 CanLII 470 (Ontario Court of Appeal).
The Family Responsibility Office (the “FRO”) is a government agency in Ontario that is responsible for collecting and enforcing the amount of support set out in a support order. Generally, when a court makes a temporary support order the FRO automatically becomes involved in the enforcement of the support unless both parties agree to withdraw from FRO and file the necessary paperwork to withdraw the case.
The Family Responsibility Office does not have the authority to change the amount of support it collects under a temporary support order even where both parties agree to the change in the amount of support.
Changing Child Support in a Final Court Order
Section 14 of the Child Support Guidelines provide that child support can be varied where there is a “change of circumstances”. Among other things, any change in income that would result in a different Table amount of child support being paid pursuant to the Child Support Guidelines is considered a “change in circumstance” justifying a change to a child support order.
Ontario’s Online Child Support Service
If children live with one parent 60% of the time or more over the course of the year and both parents live in separate residences then there is an online child support service provided by the Ontario government that assists parents in setting up/updating child support that may be used if certain criteria are met. There is a fee (currently $80 each time the service is used) and fee waivers are also available for low-income households. Both parties must also voluntarily agree to the use of the online child support service.
The online child support service cannot be used to setup/change child support if:
- either parent or any of the children live outside of Ontario
- any child is over 17.5 years old or married
- there is split custody (i.e., each parent has a child(ren) residing with them, which the other parent has to provide child support for) or shared custody (i.e., the child(ren) live over 40% of the time with both parents)
- the child support order being updated was based on undue hardship (i.e., less than the Table amount of child support is paid under the Child Support Guidelines) or imputed income (i.e., they are paying child support based on something other than their income tax return)
- the parent who currently pays or will pay for child support:
- is self-employed
- earns more than $150,000 or less than $12,000 annually
- earns cash income
- is a partner or majority shareholder of a business
- earns most of their income as a landlord or seasonal worker (e.g., employed in snow removal, fishing or landscaping)
Learn more about Ontario’s online child support service.
If parents cannot use Ontario’s online child support service because they do not meet the criteria or the other parent does not agree to use the online service, then it is recommended you consult with a family law lawyer about varying child support.
Variation Proceeding at Court
If parents agree to the changes in support, then a Form 15C Consent Motion to Change can be signed by both parties and filed at the court. The court will then issue a new final support order varying the amount of child support in the previous support order.
If parents do not agree to the change in support, then the party seeking the change shall serve the other party, and file with the court, a Form 15 Motion to Change, Form 15A Change Information Form and Form 13 or 13.1 Financial Statement. Ontario’s Court Services provides digital copies of all forms regarding the change in child support.
The Family Responsibility Office (the “FRO”) – Changing versus Ending Support
The FRO is a government agency in Ontario that is responsible for collecting and enforcing the amount in final support orders. Generally, when a court makes a final support order the FRO automatically becomes involved in the enforcement of the support unless both parties agree to withdraw from FRO and file the necessary paperwork for the withdrawal. Learn about withdrawing from FRO. The FRO does not have the authority to change the amount of support it collects under a final support order even where both parties agree to the change in the amount of support.
An Application to Discontinue Enforcement of Ongoing Support can be filed by the payor of support with the FRO if he or she believes that support should end under a support order (e.g., because a terminating event set out in the support order has occurred, the child is over the age of majority and is not enrolled in a full-time program of education, the child is over the age of majority and does not have an illness and/or disability that prevents the child from leaving their custodial parent’s care, the child is married, the child is no longer living with the custodial parent, etc.). Once the FRO receives an Application to Discontinue Enforcement of Ongoing Support they will contact the recipient of support and see if they agree to end support.
If the recipient agrees to end support, the FRO will notify the payor in writing, to stop making support payments. If the recipient does not agree that child support/spousal support should end the FRO will continue enforcing the support order. If the recipient does not respond to the FRO, then the FRO may exercise its discretion to stop enforcing support or a lesser amount of support. If the recipient does not respond to the FRO but later tells the FRO that payments should not have ended, the FRO may start enforcing payments again.
ISO Act: Obtaining, Changing and Enforcing Support Where One Person Lives Outside of Ontario
The Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13 (“ISO Act”) makes it possible for the Family Responsibility Office (“FRO”) to enforce, change and register support orders (both child support and/or spousal support) for enforcement when one person lives in Ontario and the other person lives in a “reciprocating jurisdiction” without parties having to cross borders to attend court in person. A reciprocal jurisdiction means is that there is an agreement that Ontario has with a particular country, state or province about the enforcement of support orders.
Registering Support Orders
Where a support order is made in a Canadian reciprocating jurisdiction it has been to be registered for enforcement in the Ontario court. Once the support order is registered in an Ontario court, the support order will be sent to the FRO for registration.
A support order made in a reciprocating jurisdiction outside of Ontario must also be registered for enforcement in the Ontario Court. In this situation, the court gives the support payor (living in Ontario) written notice of the registration. The notice gives the payor 30 days to ask the court to set aside the registration (i.e., ask the Ontario court not to enforce the support order).
Getting a Support Order / Varying a Support Order
The ISO Act does not apply to vary a support order made under the Canadian Divorce Act, R.S.C. 1985, c. 3 (2nd Supp) or a support order where both parties reside in Ontario.
If you live in Ontario and want to get a support order (child support and/or spousal support) or change a support order (child or spousal) when the other party lives outside Ontario (and in a reciprocating jurisdiction) then you must complete a set of Support Order forms. The completed forms (which often have to be signed under oath or solemnly affirmed in front of a Commissioner of Oaths or Notary Public) would be sent to the appropriate office in the jurisdiction where you live (e.g., if you live in Ontario, that would be the Ontario Family Responsibility Office).
If you live outside Ontario, then you will need to contact your regional enforcement office, child support agency or court office for the correct local forms and applications that are relevant to your jurisdiction (province, territory, state or country).
Once the appropriate forms have been completed and filed by the applicant, a court hearing is then held in the respondent’s jurisdiction. The respondent goes to court and files a set of forms regarding his or her position so that the judge can review the entire situation and make a support order or change an existing one.
Some jurisdictions require a “provisional order” (which means that the support order has no legal effect until it has been confirmed by a court in the reciprocating jurisdiction). The following jurisdictions require a provisional order:
- United Kingdom (consisting of England, Scotland, Northern Ireland, Wales, Gibraltar, Guernsey, Alderney and Sark, Jersey, and Isle of Man)
- New Zealand
- Cayman Islands
- Hong Kong, and
Changing Spousal Support in a Final Order
If there is a final spousal support order that needs to be changed then the party seeking the change must start a variation proceeding. If both parties agree to the change in support, a Form 15C Consent Motion to Change can be filed with the court to vary the previous final support order. If the parties do not agree, then the party seeking the change to spousal support must serve and file a Form 15 Motion to Change, Form 15A Change Information Form and Form 13 Financial Statement. All necessary forms to change support in a final order are found on the Ontario Court Services Website.
Changing Child Support/Spousal Support in an Agreement
Agreement Never Filed at Court
If the separation agreement has not been filed with the Ontario Court of Justice or the Family Court branch of the Superior Court of Justice also commonly referred to as a “Unified Family Court” (it cannot be filed with a Superior Court of Justice that does not have a Family Court Branch), then support arrangements can be changed by the parties signing an amending agreement regarding the new support terms.
Agreement Filed with the Court
Pursuant to Rule 15 of the Family Law Rules the party seeking changes in support would start a variation proceeding by serving and filing a Form 15 Motion to Change, Form 15A Change Information Form and Form 13 or 13.1 Financial Statement.
The above information is NOT legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation regarding changes in support. For more information, call us at 905-273-4588 or email us at email@example.com to book a free 30-minute consultation with one of our experienced family law lawyers at Kain & Ball Family Law.