Child Support and the Importance of a Court Order
One of the most concerning and important arrangements resulting from a divorce or separation is the continuation of financial support for any children involved. Child support is the money that is paid by one parent to another to support their children financially after a separation or divorce. The responsibility to provide child support is set out in both s 15.1 of the federal Divorce Act, as well as s 31 of Ontario’s Family Law Act.
Under Canadian law, all dependent children have an ongoing legal right to financial support from both parents; thus, both parents must continue to provide this support even after separation. In cases of a sole custody arrangement, where a child lives primarily with one of the parents or guardians and that parent bears the daily expenses of raising the child, that parent may be entitled to receive child support from the other parent. Parents must pay child support even if they do not live with the children, or do not see the children. On the other hand, if the children spend an equal amount of time with each parent, the parent with higher income may still have to pay some support.
How is Child Support Determined?
Child support table amounts from both the Federal Child Support Guidelines (which are regulations under the Divorce Act), as well as provincial/territorial guidelines, are a starting guideline but are often adjusted based on the parenting agreement/arrangement. Therefore, the total amount of child support depends on the payor’s gross income (pay before taxes and deductions), the number of children involved, and the province that the payor lives in. In cases of proven undue hardship or financial difficulties that make it hard for the payor to pay support, the judge may lessen the amount of child support owed.
When Does Child Support End?
Child support must be paid while the child is still a dependant and under 18 years of age. It may be terminated early in cases where the child is 16 or older and has voluntarily left parental control, for example. In some cases, children may continue to be dependants even after they have reached the age of 18, such as when they have a disability or illness or are attending school full-time. A separation agreement or court order may specify when child support ends by setting a ‘terminating event’, which may include the child leaving school; entering full-time employment, or getting married.
Enforcement of Child Support – The Importance of an Order
Many separating parents are able to agree on child support arrangements outside of court – however, a court child support order can be a helpful tool for both parties. Firstly, child support in Ontario is enforced through a provincial government office called the Family Responsibility Office (FRO). All court support orders made after July 1, 1987, are automatically filed with the FRO. The payor parent is required to make all support payments to the FRO, who then sends a cheque to the parent with custody or deposits it into their bank account. In the case where payments are not received, the FRO takes action to enforce the order/agreement. This may include:
– Taking money from the payor’s bank accounts, wages, retirement savings, employment insurance benefits, income tax rebates, and some government payments
– Suspending the payor’s driver’s license or Canadian passport
– Registering the support order as a “charge” against any property owned by the payor, preventing it from being sold or transferred
– Reporting the payor to the credit bureau, thus damaging credit rating
– Starting a default hearing, where the payor must explain why they are behind in payments; this may result in up to 180 days in jail.
As a paying parent, there are risks associated with paying support directly to your former partner, as you may not have proof of payment and your ex-partner may deny ever having received such payments. Furthermore, in cases where perhaps the payor pays an agreed-upon amount that deviates from the Guideline amount, the receiving parent can later go to court to vary the order and claim retroactive child support to cover the difference in what the payor paid and what should have been paid. By paying through the FRO, there is not only a registered record that exists as proof of payment, but the court order ensures that the payor is paying the correct amount of support. The FRO only monitors and enforces child support orders that are part of a court order or a domestic contract that has been filed with the court and is registered with the FRO – thus, it is imperative that you ensure your court order is registered with the FRO in order to ensure enforceability.
Ultimately, a court order provides both parties with an official record to rely upon, and an enforceability ‘safety net’ by the FRO. While parties can agree to change or vary their arrangements informally on their own, the court order will remain and is enforceable if either party eventually decides to refer back to it.
If you are still unsure about how child support is ordered or calculated, or if you are looking for more information, please do not hesitate to contact us and our specialist Family Lawyers can discuss your matter in more detail over a free consultation. You can reach our office at 905-366-0202 or contact us through our website here.