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We spoke with Gabrielle Pop-Lazic, a Senior Lawyer with Gelman & Associates, on the subject of how to modify existing decision-making responsibility or support Orders in Ontario. Please note that this article is intended as an overview on the subject of family law, and is not intended as legal advice. For legal advice regarding decision-making responsibility or support Orders in Ontario, including how to modify them, we recommend you schedule a consultation with an Ontario family lawyer. Contact us to schedule a consultation with Gelman & Associates today.
What Is Decision-Making Responsibility?
Formerly known as custody, decision-making responsibility refers to a parent’s rights to make decisions on behalf of their children. This includes decisions pertaining to healthcare, education, religion, culture, and other matters relevant to the child’s general well-being.
In a separation or divorce, the child’s parents typically negotiate how decision-making responsibility will be handled. In some cases, one parent might have sole decision-making responsibility, meaning they alone have the right to make important decisions on behalf of the child. In other cases, the parents might share this duty.
What Is a Support Order?
Under federal and provincial legislation, parents have an obligation to financially support their children. The Federal Child Support Guidelines, which are regulated and have the force of law, sets out what the amount of that support is going to be. It is based on considering what the payor’s annual income is, and the number of children that have to be supported. Information as to the correct amount can be found online.
For more information, and to learn how the support of an Ontario family lawyer might be essential in helping you navigate decision-making responsibility or support Orders after your divorce or separation, contact us at Gelman & Associates today.
Reasons for Modifying Existing Decision-Making Responsibility or Support Orders in Ontario
In order to change a final order for parenting, there has to be proof that a material change in circumstances has occurred that warrants the alteration. For example, this may be a significant move, in which a child has moved to a different jurisdiction, and therefore cannot see the parents in a way that upholds the parenting schedule as it is.
Stability is immensely important for children. If a parent is angry with the other parent, or if a new partner comes on the scene, these factors are not going to be sufficient to warrant a disruption of the child’s parenting arrangements. It cannot simply be that a parent no longer likes the current Court Order as to decision-making responsibility or child support.
The Legal Requirements for Modifying Parenting or Support Orders
For parenting Orders to change, you must be able to demonstrate that there has been a material change in circumstances. It can be that the children have aged, and the original schedule is no longer appropriate or no longer meets their needs. Similarly, if an accident or disability have changed the child’s ongoing needs, a change to parenting orders may be in order.
The test is not as high for support Orders. Under the Child Support Guidelines, it simply requires a change in circumstances. Because child support is tied to income, a change in income will result in a change in child support. In every Court Order, and every Separation Agreement, you will see a provision where parties have to exchange financial disclosure every year in order to adjust child support amounts.
Child support in Ontario has intentionally been made simple so as to try and avoid conflict. The Court has very little discretion to make an Order for child support that is different from the guidelines’ amount.
Child support may be varied from the guidelines in cases where there is shared parenting – wherein the child spends at least 40% of their time with each parent. Otherwise, child support is quite strictly enforced, with very little discretion.
Factors That the Court Considers When Deciding Whether to Modify Decision-Making Responsibility or Support Orders
As we have discussed in an overview of the child’s best interests in family law, the test for decisions is always what is in the best interests of the child.
When it comes to support Orders, the only factors the court will consider are the payor’s income and the residential arrangement for the children. If the child changes where they are living – for example, if they had been living with one parent, and now they live with the other – that will change the child support obligation from one parent to the other.
If a child is living away from either parent – for example, if they go to university and are living in residence or in a different city – the table amount of support may no longer be appropriate. Payments may be made only for the time the child is actually residing with a parent.
What to Expect During a Modification Case Hearing
The process modifying an existing Court Order looks very much like an Application. Even though it is called a “Motion to Change,” it essentially entails proceeding to a trial of the issue. In some jurisdictions, your first Conference may not be before a Judge, but before a Dispute Resolution Officer. If it is a change to which both parties can agree, meeting with a Dispute Resolution Officer may help resolve that issue without having to proceed further in the Court.
Enforcing a Modified Custody or Support Order
Once the Order has been made or changed, it is enforced in exactly the same way as any other Court Order.
We have spoken before of what to do if there has been a contempt of court for breaching access orders. You cannot bring a Contempt Motion for a violation of a payment Order. Other mechanisms are available to enforce support payments.
Once a Support Order is made by the Court, it automatically goes to the Family Responsibility Office for enforcement. If someone has failed to adhere to Support Orders, the Family Responsibility Office can suspend their driver’s license, garnish wages, and garnish federal payments such as tax refunds and GST credits. They can ask the Court to incarcerate the payor if they refuse to pay.
Contact Gelman & Associates for a Consultation on How to Modify Existing Decision-Making Responsibility or Support Orders in Ontario
If you have more questions, or would like to discuss your particular circumstances regarding the modification of existing decision-making responsibility or Support Orders in Ontario, contact us today and book a consultation with Gelman & Associates.
Disclaimer: For specific legal advice on your family law matter, please consult with a family law lawyer. The content in this article is not intended to act as legal advice and is instead intended to act as a general overview of a legal topic.
