You or your partner may need to change the child support in your separation agreement because of changes to your situation. For example:
- The payor parent loses their job and can no longer pay the child support agreed on.
- The payor parent makes more money and the other parent wants them to pay more child support.
- Your child finishes school, marries, or moves out on their own.
- Your child is working full-time.
- Your child is living with the other parent or a different person.
- There are new special or extraordinary expenses.
A change in the income of the parent receiving support is generally not a reason to change the separation agreement. This is because that parent's income is usually not taken into account when deciding how much child support should be paid.
Your separation agreement may deal with these kinds of situations. For example, it might say that child support ends when your child gets their degree or diploma.
If your separation agreement does not say what should happen if there are changes to your situation, you and your partner can agree to make a new separation agreement. If you can't agree, you can get help from a family law professional or go to court and ask a judge to decide.
You and your partner can agree to make a new separation agreement on child support to deal with the changes in your situation. You can talk to your partner on your own, with the help of someone you both trust, or with the help of a lawyer or mediator.
For example, if the payor parent is making more money, you can agree on a new amount of child support.
Your child support agreement can include:
- the names and birthdays of the children receiving child support
- where the children will live
- the amount of monthly child support payments
- the date when child support will be paid, including a start date
- the amount of additional payments for special or extraordinary expenses like daycare, if any
- a repayment schedule for the missed child support payments
- how child support payments will be made, for example, cash with a receipt, cheque, direct deposit, money order, interac e-transfer, or through the Family Responsibility Office
- how you plan to deal with child support if there are changes in your situation such as changes in income or employment
- how the payor parent will give updated income information
Your separation agreement has to follow certain rules to make it binding and enforceable under the law. This means your agreement is made in a way that allows the court to order you or your partner to do what the agreement says, if either of you stop following it.
You don't need a lawyer to make a separation agreement. But it's a very good idea for each of you to get your own legal advice before signing one. It is important for each of you to get your own legal advice from different lawyers. This is sometimes called independent legal advice. The advice is independent because each lawyer is only working for one of you.
If you and your partner cannot agree on making a new separation agreement to deal with the changes to your situation, you can get help from a family law professional. These are neutral people who are trained to work with both of you to help you reach an agreement or make a decision for you.
Family law professionals can work in:
- collaborative family law
- parenting coordination
All of these processes are sometimes called alternative dispute resolution (ADR). They help solve your issues without going to court. Deciding which process is best for you depends on the facts of your situation and what you want. For example, a mediator doesn't make decisions for you, but an arbitrator does.
Your separation agreement might even require that you first try a process like mediation to work out your issues before taking any further steps like going to court.
Some of the reasons to use ADR instead of going to court are:
- You have more control over what happens to your case.
- It can be faster and cheaper.
- It can be less stressful.
- It takes place in a private setting.
But, there are some situations where it may be better not to use ADR, such as:
- There is a history of family violence, mental illness, or drug abuse.
- You can't talk to your partner.
- You can't work cooperatively with your partner.
Each family court location in Ontario offers subsidized mediation services. You can get up to 8 hours of mediation for a fee that is based on each person's income. You can use this service whether or not you're in court. If you're already in court, you can get up to 2 hours of mediation at the court free of charge.
In some areas, Legal Aid Ontario has a mediation service that is free if you or your partner's income is low enough. These mediators help with issues of custody, access, parenting plans, travel and vacation plans, parent communication, and child support.
You can also find mediators who offer their services at lower rates through JusticeNet. JusticeNet is a not-for-profit that helps people in Ontario whose income is too high to get legal aid and too low to afford standard legal fees.
You and your partner must agree to use an alternative dispute resolution (ADR) process and you must agree on the details of the process. This includes:
- which type of family law professional will help you resolve your issues
- how your lawyers, if any, will be involved
- who will pay for the costs
- when you will do it
If you and your partner agree on the details of the ADR process, put your agreement in writing before you start. This document can be called a participation agreement, arbitration agreement, or agreement to mediate.
The agreement might include:
- the role of the family law professional who is helping you resolve your dispute
- how your lawyers, if any, will be involved
- the issues to be decided
- how to exchange documents
- how to end the process
- who will pay
The family law professional who is helping you usually drafts the agreement and includes details about you, your partner, and your issues.
Before signing the agreement:
- Review it carefully. If you have a lawyer, you should have them review it as well.
- Make sure that it includes all the important details about the process.
- Ask any questions you have.
- Make sure that you understand it.
If you and your partner still cannot agree on changing your separation agreement on child support even with the help of a family law professional, or if this is not the right option for you, you can go to court.
Going to court can be a complicated process and it can take a lot of time. It can be stressful and expensive, but it is sometimes necessary to decide your issues. This family law court process flowchart explains each step in a family law court case.
First you need to file your separation agreement with the court so that it has a copy of your agreement.
To file your separation agreement:
- Attach your most current separation agreement to a Form 26B: Affidavit for Filing Domestic Contract or Paternity Agreement.
- Take it to the courthouse. You can file your agreement only at the Ontario Court of Justice or the Family Court branch of the Superior Court of Justice. You cannot file your agreement at other locations of the Superior Court of Justice.
Next, you ask a judge to change child support by bringing a motion to change. A motion to change is the name of the court process used to ask a judge to make changes to support.
You can talk to a lawyer who can explain your responsibilities under the existing separation agreement. A lawyer can also tell you if facts exist that may convince a judge that the agreement should be changed.
If you can't afford to hire a lawyer for your whole case, some lawyers provide "unbundled" or "limited scope" services. This means you pay them to help you with part of your case.
If you can't afford to hire a lawyer at all, you may be able to find legal help in other places.