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Child Support Payment Issues In Canada

In the event that a parent stops paying their child support, under no circumstances can they be prevented access to their children. Also, in the same regard, they cannot stop paying their support if a custodial parent denies them access to their children.

Access and support are two completely separate issues. Child support is not rewarded with access to children, just as non payment is not punished by withholding children.

In the event that issues do occur regarding non payment or access, these need to be dealt with properly by the courts.

Consequences for Not Paying Child Support

Since you are required by law to adhere to a child support order, non payment has consequences that are enforced by a variety of different agencies which vary by province (e.g. in Ontario it is Family Responsibility Office – FRO). These agencies have multiple means to get payers to meet child support obligations.

Some of these means are as follows:

  • Garnishment of wages for child support payments, arrears and interest
  • Garnishment of federal payments such as income tax refunds or employment insurance payments
  • A suspension of drivers license or passport
  • A seizure of bank accounts and/or assets
  • Reporting lack of payments to the credit bureaus, to impact credit rating

What If You Can’t Afford to Pay Child Support?

Both parents are legally obligated to financially support their children. However, In the event that a parent truly cannot afford to meet their current child support payments then they do have options.

Reduction of Child Support – Settled Outside of Court

In the event that child support payments must be reduced due to valid undue hardships of the payer, and both the payer and the recipients can agree, there are two ways the child support agreement can be legally reduced outside of court.

  • If child support is being paid following a Court Order, then the parties may draw up Minutes of Settlement. In this document you need to first outline the clause of the original Order and then state how much and why it is to be varied. The Minutes of Settlement may then be filed with the court.
  • If child support is being paid per a signed Separation Agreement, an amendment can be made to the Agreement. In this document you need to first outline the clause of the original Order and then state how much and why it is to be varied. The amendment to the separation agreement may be filed with the court or simply attached to the original separation agreement. It may at any time thereafter be filed with the court and enforced.

In the event that both parties do not agree that child support should be reduced, then either party may make an application to the courts to have the matter brought before a judge.

Judge Ordered Reduction of Child Support

If a parent truly cannot afford to meet their child support obligations, and a reduction cannot be settled outside of court ,then a payer can petition to the courts for reduction citing “undue hardship“.

Undue Hardship refers to a situation that occurs when support payments cause serious financial difficulties to a payer. In order for a judge to determine whether a party is truly experiencing financial hardships, they will look at two main criteria.

1. “Their case.” How/why their circumstances make it difficult for them to pay their required support amount.

Their circumstances could include:

  • unusually high debts from supporting their family before the separation or to just earn a living,
  • unusually high costs associated with access to their child,
  • a legal duty to support another person,
  • a legal duty to support a child other than a child of the marriage, or
  • a legal duty to support a person who, because of illness, disability or other cause (including education), cannot support himself or herself.

2. Does the household of the parent claiming undue hardship have a lower standard of living than the household of the parent getting the support?

  • The payer must show that the standard of living in their household is lower than the standard of living in the household of the parent receiving the payments. If either parent has remarried, or is living with a new partner, the income of the new spouse or partner must be taken into account. This is the only time that you will consider the income of a new partner. It is not relevant in any other situation.

If undue hardship conditions truly do exist and are successfully proven to the courts, then child support obligations can be changed to reflect the individual’s new circumstances. The court will determine exactly how much child support they will be required to pay, and it will be based on the judge’s comparison of the two household standards of living and all the financial obligations that interfere with the payer’s ability to meet their current child support payments.

The court most likely will specify that once a reasonable amount of time has passed, then the individual will be required to again resume making their initial ordered child support payments. If this time is up and the payer is still unable to met their full child support obligations, they may petition to the courts again to re-examine whether undue hardship conditions still exist.

Children and Divorce

There is much to consider when getting divorced and understandably children are often a couple’s biggest concern. Getting professional advice from a family lawyer in your area is the best way to ensure that you and your children’s rights are protected. You can help your children through the divorce by ensuring they are never placed in the middle and, if at all possible, by staying amicable with your ex. This will help to minimize the stress and tension of the situation and changes going on.

There are multiple different agencies throughout Canada that are available to help families and children during the divorce process. They can help to answer your questions and concerns about child custody, child support, visitation, separation and divorce in general. Check with your local courthouse, online, or in the yellow pages to find the agencies available in your area.

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