Ontario

Canada – Ontario

Contact
Ministry of the Attorney General

Correspondence:
Family Responsibility Office
Post Box 220
Downsview, Ontario
Canada M3M 3A3

Tel: 1-416-240-2410
Fax: 1-416-240-2405

Payments:
Director, Family Responsibility Office
P.O. Box 2204, Station P
Downsview, Ontario
Canada M3M 3A3

Overview
U.S. Federally Declared Foreign Reciprocating Country – Effective August 7, 2002.

Web Link to Guides and Forms
http://www.cfcs.gov.on.ca/CFCS/en/programs/SCS/FamilyResponsibilityOffice/Forms/ISO+FORMS.htm

U.S. Office of Child Support Enforcement Promulgated Forms and Procedures:
http://www.acf.hhs.gov/programs/cse/

Relevant Laws

AGE OF MAJORITY

Q: Age of majority in Ontario.
A: Every person attains the age of majority and ceases to be a minor on attaining the age of eighteen years. [s.1 of the Age of Majority and Accountability Act, R.S.O. 1990, c. A.7]

Q: If not stated in the order, at what age is child support automatically terminated as a matter of State law? Qualify, if necessary.
A: Child support does not automatically terminate at a given age in Ontario. Generally, it will continue to the child’s first post-secondary degree. However, it may end at age 18 if the child does not continue to be enrolled in a full-time program of education or at age 16, if the child has withdrawn from parental control. If a child is handicapped, the support may continue for the child’s lifetime. [s.31 of the Family Law Act, R.S.O. 1990, c. F.3, s. 31 (1); 1997, c. 20, s. 2., s.2 of the Divorce Act, R.S., 1985, c. 3 (2nd Supp.)]

Q: Does child support end if the child leaves the household but does not emancipate?
A: No [see above]. A child may be attending post-secondary education, be on vacation or working away from the Support Recipient’s home and still be entitled to support.

Q: Does Ontario allow support to be paid beyond the age of majority under any circumstances (for example, the child is handicapped or in post-secondary education)?
A: Yes [see above]

SERVICE OF PROCESS

Check which of the following methods are used to serve process on an individual:

__ personal service [Rule 6(3)(a)(i) of the Family Law Rules]

__ personal service for notices under the Interjurisdictional Support Orders

__ Act, 2002, unless otherwise ordered [Rule 37(3)( and 37(19) of the Family Law Rules]

Options that are available if the person is avoiding personal service:

__ regular mail (no receipt) [Rule 6(2)(a) of the Family Law Rules]

__ registered mail (receipted by addressee only) [Rule 6(3)(c) of the Family Law Rules]

__ registered mail (receipted by anyone at the address) [Rule 6(3)(d) of the Family Law Rules]

__ publication (example: in a legal journal, newspaper, public posting)

__ [Rule 6(17) [Rule of the Family Law Rules]

SERVICE OF PROCESS

Q: How is a non-resident or person whose whereabouts are not known, notified of proceedings?
A: The court may, on motion without notice, order that a document to be served by substituted service, using a method chosen by the court, if the party making the motion,

(a) provides detailed evidence showing,

(i) what steps have been taken to locate the person to be

(ii) served, and

(iii) if the person has been located, what steps have been taken to serve the document on that person; and

(b) shows that the method of service could reasonably be expected to bring the document to the person’s attention.

[Rule 6(15) [Rule of the Family Law Rules]

If the person commencing the proceedings does not know the whereabouts of the responding party at all and cannot obtain an order for substitutional service, then the process cannot proceed.

STATUTE OF LIMITATIONS

Q: Is there a statute of limitations for past due support? If yes describe
A: Not any longer. Ontario’s legislation has recently changed. The old Limitations Act provided for a 20 year limitation period for the enforcement of a support order.? However, the new Limitations Act, 2002, which came into force on January 1, 2004, provides no limitation period for the enforcement of a support order. [s.16(1)(c) of the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B] Transitional provisions of the new Limitations Act provide that if arrears accrued prior to January 1, 2004, and old limitation period has not expired, they will never expire. However, it will not revive arrears that died under the old limitation period.

Q: Is there a statute of limitations for establishing paternity? If yes describe
A: No, however an application to the Court for a declaration of paternity must be done when both the child and the putative father are still living. [s.5 of the Children’s Law Reform Act, R.S.O. 1990, c.12]

Q: Will Ontario accept a petition if the only issue is support for a prior period, that is, no child is currently entitled to support?
A: Yes. Clause 34(1) of the Family Law Act provides the Court with the authority to make an order requiring that support be paid with respect to any period before the date of the order. However, if the application was under the Interjurisdictional Support Orders Act, 2002, it would require the application of the law of the reciprocating jurisdiction, if pleaded. If an order for support was made before the child reached the age of majority and arrears are still owing under that order, the Director, FRO will continue to enforce those arrears after the child has reached the age of majority.

AMOUNT OF SUPPORT

Q: In setting the amount of support, whose income is considered in addition to the income of the non-custodial parent? (for example: custodial parent’s, custodial parent’s new spouse, child’s, etc)
A: The presumptive rule is that the amount of child support ordered is dependant on the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought.[s.3 of Child Support Guidelines, Ontario Regulation 391/97, Amended to O. Reg. 446/01 and s.3 of the Federal Child Support Guidelines, SOR/97-175] However, the Court will look at the incomes of both parents when determining what amount the Support Payor will be ordered to pay to cover the special or extraordinary expenses of the child. In determining the amount of support in circumstances of undue hardship, there will be a comparison of household incomes.

Q: How is the amount of support determined? (examples; by formula, % of income, tribunal discretion, etc)
A: Spousal Support – Every spouse and every same-sex partner has an obligation to provide support for the other spouse or same-sex partner, in accordance with need, to the extent that he or she is capable of doing so. A Court that makes an order for spousal support shall consider all of the circumstances of the parties. [s.30 and s..33(9) of the Family Law Act, R.S.O. 1990, c. F.3, s. 31 (1)]

Child Support – A Court that makes an order for child support must do so in accordance with either the Ontario Child Support Guidelines or Federal Child Support Guidelines, depending on the residency of the parties. [s.33(11) of the Family Law Act, R.S.O. 1990, c. F.3, s. 31 (1); 1997, c. 20, s. 2and s.15.1(3) of the Divorce Act, R.S., 1985, c. 3 (2nd Supp.)]

The Federal and Ontario Child Support Guidelines consist of a set of rules and tables for calculating the amount of support that a paying parent should contribute towards his or her children. The presumptive rule is that the amount of child support ordered is dependant on the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought.[s.3 of Child Support Guidelines, Ontario Regulation 391/97, Amended to O. Reg. 446/01 and s.3 of the Federal Child Support Guidelines, SOR/97-175]

The Court can order payment of an additional amount of support to pay for special or extraordinary expenses, including child care expenses, extra-curricular activities, dental or medical expenses, etc. [s.7 of Child Support Guidelines, Ontario Regulation 391/97, Amended to O. Reg. 446/01 and s.7 of the Federal Child Support Guidelines, SOR/97-175]

A court also has discretion to award an amount that is different from the above Guidelines if the Court is satisfied that special provisions in an order or a written agreement respecting the financial obligations of the parents have been made for the benefit of the child or if the Guideline amount would result in an amount of child support that would be inequitable. [s.33(12) of the Family Law Act, R.S.O. 1990, c. F.3, s. 31 (1); 1997, c. 20, s. 2 and s.15.1(5) of the Divorce Act, R.S., 1985, c. 3 (2nd Supp.)]

Q: Does Ontario allow for support for a period before the parent applied? If yes, what is the period allowed?
A: Yes. Clause 34(1) of the Family Law Act provides the Court with the authority to make an order requiring that support be paid with respect to any period before the date of the order. The legislation does not set out a specific period although case law has held that it would be paid from the date of separation.

MODIFICATION OF ORDERS

Q: May either party request a review for modification?
A: Yes, but there must be a material chance in circumstances to justify changing the amount of support ordered. [s.37(1)(a)(b) of the Family Law Act, R.S.O. 1990, c. F.3, s. 31 (1); 1997, c. 20, s. 2 and s.17(1)(a) of the Divorce Act, R.S., 1985, c. 3 (2nd Supp.)]

Q: Will Ontario modify its existing domestic judgment when one of the parties resides in the USA and will not return for — or refuses to participate in — the proceedings?
A: Yes, the Court may make an order varying a support order, if satisfied itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. [s.37(2.1) of the Family Law Act, R.S.O. 1990, c. F.3, s. 31 (1); 1997, c. 20, s. 2 and s.17(1)(a) of the Divorce Act, R.S., 1985, c. 3 (2nd Supp.)]

If the order being varied was made under the Divorce Act of Canada, it can only be varied by a Canadian Court. The Court will proceed with the variation if it is satisfied that the proceeding before the Court has come to the attention of the responding party.

If the matter is an application in Ontario under the Interjurisdictional Support Orders Act, 2002, it would be registered in the US state and the process under ISO would be followed.

Q: Does Ontario law require automatic adjustments (for example, based on changes in the cost of living, or X% every 3 years, etc)
A: The Court may order indexing of spousal support in a court order, but it is not automatic. [s. s.34(5) of the Family Law Act, R.S.O. 1990, c. F.3, s. 31 (1); 1997, c. 20, s. 2]

There is no automatic indexing of child support orders.However,under the Child Support Guidelines, there is an intention that the Support Payor will provide financial disclosure on a yearly basis in order to negotiate an adjustment of support based on his/her income change. [s.25 of Child Support Guidelines, Ontario Regulation 391/97, Amended to O. Reg. 446/01 and s.25 of the Federal Child Support Guidelines, SOR/97-175]

Q: If yes, are the automatic adjustments considered to be modifications of the order?
A: If a spousal support cost of living adjustment is ordered, it is not considered a variation.

Q: Is a new order issued as a result of an automatic adjustment?
A: No.

Q: Is there a minimum or threshold amount of change that must occur before a modification is made? (for example, the order would need to change by 25 dollars or more, or at least 10% change in order.)
A: There is no minimum or threshold amount of change that must occur in terms of a specific dollar amount or percentage change in the order. However, the Court must be satisfied that there has been a material change? in circumstances since the making of the order.

COST RECOVERY

Q: What costs, if any, are recovered from the custodial parent?
A: The following fees are charged by the Director of the Family Responsibility Office: $25.00 = Statement of Arrears [Ontario Regulation 160/00]

Q: What costs, if any, are recovered from the non-custodial parent?
A: The following fees are charged by the Director of the Family Responsibility Office:

$25.00 = Statement of Arrears
$10.00 = post-dated cheque
$150.00 = confirmation of identity letter
$400.00 = enforcement fee once every 9 months if aggressive steps taken

[Ontario Regulation 160/00]

Forms and Procedures

Web Link to Guides and Forms
http://www.cfcs.gov.on.ca/CFCS/en/programs/SCS/FamilyResponsibilityOffice/Forms/ISO+FORMS.htm

IF the person in the US wants to establish a new (initial) support assessment/order in Ontario including the establishment of paternity…

THEN complete these forms and documents….
We accept the following US forms:

– US Child Support Enforcement Transmittal I Initial Request
– Uniform Support Petition
– General Testimony
– Affidavit in Support of Establishing Paternity (if required)
– Supporting Documentation/Evidence

A US resident may use Ontario’s forms to establish an order if they wish. Refer to this website for the forms.
http://www.cfcs.gov.on.ca/CFCS/en/programs/SCS/FamilyResponsibilityOffice/Publications/howProgWorks.htm

Forms must include at least one originally sworn/commissioned copy and two photocopies. If US legislation is provided, Ontario court will refer to it when establishing Support Order. If no legislation is provided, Ontario court will refer to the Ontario Family Law Act. (www.e-laws.gov.on.ca)

IF the person in the US wants to register and enforce an existing US order in Ontario…
We require:

-US Child Support Enforcement Transmittal I Initial Request
-Three separately certified copies of each existing Support Order
-Certified/sworn Statement of Arrears

To register & modify an existing US order in Ontario because the order is not modifiable in the US…
We accept the US forms:

– US Child Support Enforcement Transmittal I Initial Request
– Uniform Support Petition
– General Testimony
– Three separately certified copies of the order that is being varied.
– Supporting Documentation/Evidence

A US resident may use Ontario’s forms to modify an order if they wish. Refer to this website for the forms.
http://www.cfcs.gov.on.ca/CFCS/en/programs/SCS/FamilyResponsibilityOffice/Publications/howProgWorks.htm

Forms must include at least one originally sworn/commissioned copy and two photocopies.

If US legislation is provided, Ontario court will refer to it when establishing Support Order. If no legislation is provided, Ontario court will refer to the Ontario Family Law Act. (www.e-laws.gov.on.ca)