Time for a Change?

Aug 09, 2016

By Charles Morrison, Lawyer

In family law things change.  In particular, support orders change over time.  Mothers, fathers, husbands and wives change jobs.  Their incomes change.  Children who are once dependant become independent.  Special expenses for children under Guideline legislation changes.  These and other circumstances that occur in the ordinary year by year life of a separated family require review and recalculation of child support and spousal support provisions in court orders and in separation agreements.

To give only a few examples, we frequently encounter situations in which one or more children have finished school, have changed residence between parents or have new special expenses such as post-secondary costs.  Or, there may be situations in which a  support payor or support recipient have either experienced  increases in their incomes, decreases or have suffered the misfortunate of employment loss.  Existing support orders or separation agreements therefore need to be changed.

There may be additional problems where time has passed and the support orders have not been changed to reflect the new circumstances.  Our payor clients may have enjoyed income increases for several years but their support obligations have not been changed  during those years to reflect what could be a higher support obligation for their children and/or spouse.  On the other hand, they may have suffered income drops including unemployment and layoff without having advised their order or agreement.  Because support orders in Ontario are normally enforced by the provincial government agency known as the Family Responsibility Office (FRO) they may be facing several thousands of dollars worth of support arrears because FRO has continued to debit them with the amount set out in the existing order or agreement.

Besides support orders and provisions, there may be a need to revisit or change child custody and time sharing arrangements.  These  issues are often contested between parents and add to the complexity of calculating and recalculating what should be ongoing support amounts let alone retroactive claims regarding overpayments and underpayments.  I find that the more out of date the current order or agreement is the more complex and difficult it is to put matters right.  This can lead to court action.  To minimize these problems I advise my clients, whether the support recipient or the support payor, to fine tune and change their support arrangements as the changes occur.

Property settlements, whether by court order or separation agreement are usually permanent however, it depends on the particular situation.  There may be items that are left for future negotiation or determination.  For example the spouses may agree to delay the sale of the matrimonial home for a number of years in order to allow the children to continue to live there.  The issue of sale of the home would therefore be deferred until a later date.  However, for the most part, when we revisit orders of the court or separation agreements we are concerned with matters involving support and possibly custody and access (time sharing).

In many cases, we try to negotiate settlement but sometimes this is not possible or successful.  It is then necessary to apply to the court for relief.  If we represent the party seeking the change, we normally do this by way of what is known as a “Motion to Change”.  We sometimes refer to this procedure as a “variation” as we are looking to change (vary) a previous court order or separation agreement.  The procedure, like so many in our family law court system, is very heavy with documents and rules.  It is sometimes a disincentive to people who want to change an order especially if they are self-represented.  Even though Ontario has for many years adapted court forms with the intention of making them more user friendly and capable of completion by people who do not have a lawyer, the forms are lengthy and confusing.  If you want an example, google the Ontario government website:  ontariocourtforms.on.ca/en/family-law-rules-forms/   and in particular, form 15 (motion to change) or form 15A (change information form).  In our practice, we use these forms frequently however, I confess that they can drive me around the bend as well.

There are a few limited ways in which some of the paperwork can be avoided and faster results obtained.  It is much easier to avoid at least some of this procedure if the support payor and the support recipient are in agreement as to what should happen.  One of the methods that I will describe below refers to enforcement by FRO.  The other is a relatively new  but little known online procedure.

First, it is important to understand that support procedure in Ontario is complicated by the fact that we differentiate between support orders (which come from the court) (or a spousal support or child support provision in a separation agreement) on the one hand, and enforcement of those orders by FRO.  FRO is not a court and does not make or change court orders.  At best, it may stop enforcing those orders or change the amount that is being enforced (if for example there are fewer children who qualify for support than under the existing court order).  FRO can enforce support in a number of ways including voluntary agreement by the payor to arrange automatic withdrawal from their bank account, garnishment of wages, liens against income tax refunds or other government monies, freezing passports or obtaining driver’s license suspensions.  They can compel a person who owes support to come to court to provide full financial disclosure and show why they have not made payment.  You should consult the FRO website for a full description of their services.

It is possible in certain circumstances, to change how and what FRO enforces even if that does not result in changing the court order itself.  (For many people, that is sufficient so long as the  parties do not withdraw their case from FRO and leave enforcement to private means).  For example, if the father believes that the oldest of three children no longer qualifies for child support (let’s say in this example, that the child has completed their post-secondary studies and is now working or the child no longer resides with the mother) it is possible for him to write to FRO requesting a termination of support enforcement for that child.  FRO will contact the mother and if she agrees that this child no longer qualifies or does not answer the request, FRO has the power to recalculate support for the remaining two children.  Unfortunately for some, it can only recalculate the table amount of support based on the income information that it has for the father as per the existing court order.  This will not be of great help to the father if his income has dropped since then, hence he need to bring a motion to change to not only reflect the fact that there are now only 2 children who qualify for support but also to calculate that support based on that reduced income.

I mentioned one other development which may also provide a short cut.  This recent innovation is little known and affects only child support orders (or child support provisions in separation agreements that have been filed with the court) and only in certain circumstances.  It is a new online Child Support Service and allows parents to either establish or up-date child support payments through an on-line portal without having to go to court.  It even allows parents to take advantage of the service where they agree on an amount of child support but do not have a court order or even a separation agreement and want to set up child support arrangements for the first time (I do not recommend this as I feel that there should be proper provisions to deal with custody, care and time sharing. The determination of child support using the online tool that the site provides is only as reliable as the information supplied).

The online child support service has been available since the spring of 2016.  I do not know any person who has yet used it, nor how many persons have signed up nor the results that they have obtained.  I applaud the government of Ontario for at least attempting to streamline the process of changing or establishing child support arrangements in relatively simple situations.  For more information, I suggest that you consult the website www.servicesone.gov.on.ca or google “Ontario Child Support Service”.

The service may be useful especially with people would ordinarily avoid the annual exchange of income and other financial information or avoid the court process to make relatively minor annual changes in child support.  The child support service does include the recalculation of child support provisions under existing court orders or separation agreements.

There are many restrictions on the service.  In addition, you cannot change spousal support provisions through the service.

It is still a good idea to obtain proper legal advice in all cases.  As I have said, this area of family law can be complicated.