Contested Divorce Legal Services in Brampton

Once a child support order or a separation agreement requiring support is in place, it is typically registered with the Family Responsibility Office (FRO) in Ontario. FRO is a provincial agency that collects support from the payor and pays it to the recipient. It has strong enforcement powers: if a payor defaults, FRO can garnish wages, seize bank accounts, suspend driver’s licenses, deny passports, and even jail persistently delinquent payors. These enforcement measures underscore that child support is not optional.

It’s worth noting that support amounts can be changed (varied) if circumstances change significantly – e.g., the payor’s income changes materially or the child finishes school, etc. But until an order is formally changed by a court (or new agreement), the payor must continue paying the current amount. Falling into arrears can have lasting consequences; arrears accumulate with interest. Courts have limited discretion to cancel arrears, and only if the payor proves they truly couldn’t pay and acted responsibly in asking for a change as soon as possible.

As discussed, child support usually continues while a child is a dependent. Terminating events can include the child turning 18 and no longer in full-time education, or finishing their first post-secondary degree/diploma, or becoming self-sufficient through full-time work. Sometimes separation agreements stipulate an end date like age 22 or upon completion of first degree. If a child under 18 quits school and becomes employed full-time or leaves home against the parent’s reasonable rules, a court may find they’ve withdrawn from parental control and end support. Conversely, for a child with a disability who cannot ever live independently, support might continue indefinitely (and may be paid to the other parent or even to a trust if the child is an adult but dependent).

Each case can be different. For instance, if a child takes a “gap year” after high school, the question of support during that time can depend on whether they are expected to return to studies and whether they remain dependent on the parent. Often, courts continue support through a short gap if post-secondary is planned. If a child marries or enlists in the military, that usually ends dependency as well.

It’s important that if you are the payor and believe a support obligation should end, you do not just stop paying unilaterally. Formally, you should obtain the other parent’s agreement or apply to court to terminate or adjust the order. Stopping payments without an order can lead to enforcement actions even if you believe you’re in the right, until and unless a court agrees and changes the order.

In shared custody (each parent over 40% time), as mentioned, typically a set-off of table amounts is used. For example, if Dad would pay $1,000/mo under the table and Mom would pay $300 if she were the payor (due to her income being lower), then Dad pays the difference: $700. The idea is both are contributing during their own time as well. However, courts can adjust this if the formula is inequitable in a particular case.

In split custody (where each parent has primary care of one or more children – e.g., Dad has one child living with him, Mom has the other living with her), each parent owes support for the child in the other’s care, and these are set off. So if support for Child A (with Mom) is $X from Dad, and for Child B (with Dad) is $Y from Mom, the higher amount minus lower amount is paid by the appropriate parent.

The Child Support Guidelines cover incomes up to $150,000 with table amounts. If a payor’s income exceeds $150,000, the table amount for $150,000 is used plus a discretionary percentage of the income over that, as the court may decide is appropriate. Usually, the table formula is still followed unless the payor can show that the amount is in excess of the child’s reasonable needs (for ultra-high incomes, sometimes support is capped to avoid a windfall to the child/recipient, but the threshold is high). Children are entitled to share in their parents’ financial success, but not to be spoiled with absurdly high payments – the court balances providing a comparable standard of living versus excess.

If a parent has undue hardship, there is a provision to deviate from the table amount, but it’s rarely successful. Undue hardship might be claimed if a payor has heavy debts from supporting a prior family, or unusually high costs of access (say, travel costs if the child is far away). Even then, the court compares both households’ standards of living via a formula; if the payor’s household isn’t significantly worse off than the recipient’s, no reduction is given.

A common issue is when support wasn’t paid in the past or was paid at a lower amount because incomes changed. Courts can order retroactive child support going back (often up to 3 years, sometimes more in exceptional cases) if the payor was earning more and didn’t disclose that to adjust support, or if they just failed to pay. The Supreme Court of Canada (in D.B.S. case) set out factors for retroactive awards – generally, a parent should be forthright about increases in income, and a recipient who delays too long in seeking an increase might have limits on how far back they can go.

For example, if a payor got raises over 5 years but kept paying the old amount, the court might order back-payment for the last 3 years (assuming the recipient didn’t unreasonably ignore the situation). It’s a case-by-case analysis, focusing on fairness to the child and avoiding punishing a payor who wasn’t asked to pay more versus preventing payors from hiding income.

It’s vital to stress: if a couple was not legally married, the equalization regime does not apply. Each partner keeps what’s in their name. If assets are jointly owned, they split those (or the value) as co-owners. If one partner feels it’s unjust they contributed to the other’s assets, they may have to resort to equitable claims like unjust enrichment and constructive trust – a much more complex area where one argues that they contributed to the acquisition or maintenance of an asset and should get a share (the court might order a monetary award or a share of property if proven). Those cases are tricky, costly, and outcomes are uncertain – hence many common-law partners choose to sign cohabitation agreements to clarify property and support rights in advance.

Generally, equalization is automatic. However, a court can award an unequal division (i.e., something other than a 50/50 split of the difference) in rare cases where equalization would be “unconscionable” (a very high threshold). Section 5(6) lists a few scenarios that might justify this, such as: one spouse wastefully depleted assets (reckless spending or intentional depletion), or incurred unreasonable debts, or one spouse very shortly before separation transferred property to reduce their NFP, etc. Also if the marriage is very short and the result is hugely unfair (for example, a marriage of less than 5 years and one spouse brought a vastly larger asset into it that became the matrimonial home, equalizing that might be unconscionable), the court can adjust. Unconscionability is a strict test – the outcome has to shock the conscience of the court. Routine imbalance or the fact that one spouse gets a big payment isn’t enough; it has to be something like egregious behavior or an absurd outcome. Courts seldom interfere with the formula for long marriages.