Given the recent COVID-19 crisis, the circumstances of many individuals may have changed. As a result, spouses or parents may be looking to vary their child support or spousal support obligations. In Ontario, you can file for or change child or spousal support through the court, or by a written agreement.
By Motion to Change
Where a party applies to the court to change child or spousal support, the moving party i.e. the party who brings the application, must show that there has been a change in material circumstances. Such material circumstances may include a reduction in income of the paying spouse, loss of employment or evidence of undue hardship.
Once a court makes a spousal support order, either spouse may bring a motion to change to decrease or increase the quantum of support. A material change of circumstance may apply if one spouse subsequently remarries and therefore changes their income and circumstances. If there has been a change in material circumstances such as one spouse losing their job or the recipient spouse obtaining a job, a motion to change may be brought.
Given the recent COVID-19 crisis, parties should be aware that the onus lies with the paying spouse to raise any issue with paying spousal support as soon as the material change occurs. The spouse will need to prove that their income loss is not intentional and results from a circumstance outwith their control e.g. COVID-19. Parties should take steps to mitigate any potential income loss by considering alternative avenues of employment or applying for social assistance and keep records of such in the event that they are asked for proof.
The courts closely follow Child Support Guidelines, however, there are many circumstances which can impact how much child support should be paid in each case. The Child Support Guidelines will be considered in line with circumstances which include:
- where the payor spouse earns over $150,000 per year;
- where the child is over the age of 18, here the court will consider whether the child is in full time education or is disabled;
- where there are extraordinary expenses (referred to as Section 7 expenses) such as extra-curricular activities or private school fees.
There are also specific rules which apply where there is split or shared custody.
The court will look at the merits of the case and whether or not the change in circumstance was reasonably foreseeable. The court may agree with the proposed change and sign the order, parties are not required to attend in court. The court also has the discretion to require the parties to appear in court to discuss the issues further. Once a judge has reviewed the proposed change, the order must be sent to the Family Responsibility Office (“FRO”). Unless this agreement is filed, FRO cannot enforce the updated support amount.
By Written Agreement
Both spousal and child support may be varied by written agreement. Both spouses/parents must sign the agreement in the presence of a witness and receive independent legal advice. If one party does not agree to the updated terms, you may ask the court to order the change. Any written agreement must be filed with the Ontario Court of Justice or the Superior Court of Justice (Family Branch) before it can be enforced by FRO.
How can we assist
Our experienced family lawyer can assist parties seeking to bring a motion to change or assist with any urgent family law motion. At Gilbertson Davis LLP, we advise and represent clients on a full range of family law matters. Contact us for a consultation regarding COVID-19 and access or any family matters related to COVID-19.
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