Child Support Articles
There are two separate Acts that govern child support: claims for child support can be made under the federal Divorce Act if they are being made as part of a divorce proceeding. If the parties were never married, or they were married but are choosing to separate rather than divorce, applications for child support are made under Ontario’s Family Law Act.
The Federal Child Support Guidelines are regulations appended to the Divorce Act, and they govern all child support orders made under that Act. However, there are provincial Child Support Guidelines, which are appended to the Family Law Act, that mirror exactly the Federal Child Support Guidelines. Therefore, the amount of child support payable will be identical regardless of which act the claim is made under.
Below are details regarding each step a court will follow in calculating support under the Child Support Guidelines. The following steps apply regardless of whether the court is making a final order, or an interim order to be paid pending the final order.
Once a final support order has been made by the courts, it is possible to vary that order if there has been a change in circumstances.
Section 14 of the Child Support Guidelines indicates that a variation order can be made if there has been any change in circumstances that would result in a different child support order. The most common change is to the payor parent’s income, which will result in the amount of support being adjusted to the Table amount applicable for that new income.
The Family Responsibility Office (“FRO”) was established under the Family Responsibility and Support Arrears Enforcement Act for the specific purpose of ensuring that support payments are made. FRO will enforce any support order issued by Ontario courts, and any support agreement in a domestic contract that is filed with the courts. Once a support obligation is registered with FRO, that agency acts as an intermediary for all payments: support payors pay support directly to FRO (usually, FRO garnishes the payor’s wages), and FRO then forwards those payments to the recipient parent. This is the case unless parties agree expressly, in writing, to withdraw from FRO.
Many couples who separate are able to agree, either independently or through mediation, on the main issues involving the children, and they therefore do not go through the court system to obtain a child support order. However, a court order can be very important for both parties.
As the payor spouse, there is a risk that if you are paying support directly to your former spouse, but not through the Family Responsibility Office (FRO), you may later be unable to prove you made those support payments and your spouse may deny receiving them. There is also a risk that, if you and your spouse (perhaps unknowingly) agreed to an amount of child support that is less that the Guideline amount, and your spouse then goes to court to vary the agreement, the court may order retroactive support to cover the difference between what you were paying and what you would have paid during that period under the Guidelines. Obtaining a court order ensures that you are paying the correct amount of support.
Courts can order retroactive child support for a period during which the support payor should have been paying support but was not, or was paying less support than what the recipient was entitled to under the Child Support Guidelines. This can occur when the support payor has an increase in income but does not increase support payments to the new Table amount.