September 2017

5.15 Spousal and Child Support

Summary of Policy

Effective January 1, 2017, child support payments are fully exempt as income and do not impact a person’s eligibility for the Ontario Disability Support Program. Child support payments that are exempt relate to legally required payments for any member of a benefit unit, regardless of age; this may include children under 18, dependent adults, and recipients eligible in their own right.

Spousal support will continue to be treated as income and deducted dollar-for-dollar from an applicant/recipient’s income support.

Legislative Authority

Sections 8(1), (2). 9(1). 47(1) and (2) of the Ontario Disability Support Program Act, 1997
Sections 11(1), 13, 37, 43(1)9,9.1 and 35 of the Ontario Disability Support Program General Regulation

Summary of Directive

This directive provides direction on the treatment of cases where child or spousal support may be available to applicants/recipients.

Intent of Policy

To ensure that child support payments do not impact eligibility for income support and that an applicant/recipient continues to be eligible as long as he/she is making efforts to obtain spousal support to which he/she or his/her dependants may be entitled.

Application of Policy

Pursuit of Spousal and Child Support In Relation to Eligibility for ODSP

Effective January 1, 2017, an ODSP applicant/recipient is no longer required to pursue child support payments as a condition of eligibility. An applicant/recipient is still required to advise ODSP staff of any child support payments that he/she receives on behalf of any member of the benefit unit.

An ODSP applicant/recipient is required to pursue spousal support payments as a condition of eligibility unless this requirement has been waived. If the Director is not satisfied that a member of the benefit unit has made reasonable efforts to obtain a financial resource to which he/she is entitled, such as spousal support, the Director may reduce income support or determine that the person is not eligible for income support.

Eligibility does not depend on the actual receipt of spousal support payments, but on the efforts being made to obtain support. Efforts being made may include attending court appointments and providing the ODSP office with current information.

Applicants/recipients are required to provide all necessary information and supporting documentation as evidence that they have made or are making every reasonable effort to obtain all spousal support available to them.

Where an applicant or recipient who is eligible for spousal support reports a zero amount because support was not received for at least one calendar month and it appears the situation is likely to continue, in addition to reporting the zero amount for spousal support, the client must provide an affidavit that payments are not being received and complete the Declaration Form (Form 0311). The completion of this form declares that the applicant or recipient did not receive/is no longer receiving spousal support and must be kept on file. Also, the Agreement to Reimburse Form 2208 (2008/08) must be completed. Both forms and the affidavit must be kept in the master file.

Community Resources Available to Assist Applicants/Recipients in Obtaining Support

The following resources may be available to assist applicants/recipients in obtaining support, depending on the issue and the applicant’s/recipient’s location:

  • duty counsel for motions to change support (in the Ontario Court of Justice and the Superior Court of Justice (Family);
  • legal aid (in cases with complex custody/access/property and support issues);
  • Family Law Information Centres (in all Ontario Courts of Justice and Superior Courts of Justice (Family); or
  • community legal clinics (where available).

Reporting Child and Spousal Support Payments

Applicants and recipients are required to report any changes in child support payments using the Changes Report Form or by providing a copy of the amended court order or agreement. Where the child support amount has not changed from the previous month’s report, applicants and recipients are not required to report this income on a monthly basis.

As per income reporting requirements, applicants and recipients must report any change in spousal support payments received, including where he/she does not receive any payments (zero dollar amount). Applicants and recipients can report changes to spousal support by using the Changes Report Form and where applicable, provide a copy of the amended court order or agreement. Where the spousal support amount has not changed from the previous month’s report, applicants and recipients are not required to report this income on a monthly basis.

Retroactive Child Support Payments

Retroactive child support payments must be applied to the period for which they are intended.

If the child support payments are intended to cover a period starting on or after January 1, 2017, they should be treated as exempt income.

If the payments are intended to cover a period before January 1, 2017, in which the client was in receipt of ODSP, the payments should be treated as income and deducted dollar-for-dollar, unless it would have otherwise been exempt.

Consistent with previous direction related to the Ontario Court of Appeal Decision in Ontario (Disability Support Program) v. Ansell, retroactive child support payments for a period between April 21, 2011 and December 31, 2016, given directly to or used for the benefit of an adult disabled child (i.e. an individual who is 18 or older, eligible for ODSP in his/her own right, and had a child support provision in place for his/her benefit) would be exempt only if an income exemption applied (e.g. payments made towards disability-related items and services). Where the child support payments were not given directly to the adult disabled child or used for his/her benefit and the adult disabled child’s parent who received the payment was also on social assistance, then it would be treated as income and deducted dollar-for-dollar against the parent’s entitlement.

Lump sum payments that cannot be attributed to a specific period should be treated as income in the month they are received (therefore, exempt if received on or after January 1, 2017) and as an asset in the following month.

Assignments

Effective January 1, 2017, child and spousal support is no longer required to be assigned.

There may be rare occurrences where a cancellation of assignment will still be required. Where an assignment has to be cancelled retroactively, the effective date of the cancellation would be one that is prior to the child support exemption coming into effect (i.e. on or before December 31, 2016).

For example, in March 2017, an ODSP case with a support assignment is closed retroactively with an effective date of October 31, 2016. The support assignment should be cancelled with an effective date of October 31, 2016. In these circumstances, staff will have to complete the Cancellation of Assignment/Direction Form 0044 and send the form to the Family Responsibility Office to process.

Waiver of Applicant’s/Recipient’s Obligation to Pursue Support

Effective January 1, 2017, a waiver of an applicant’s/recipient’s obligation to pursue child support payments is no longer required.

There are certain circumstances under which it is not feasible for an applicant or recipient to pursue spousal support. Depending on the nature of these circumstances, the requirement to pursue support may be waived on a temporary or permanent basis.

The pursuit of spousal support may be temporarily waived for a period of time based on the individual merits of the case. Generally, a temporary waiver period is approved for 3-12 months. However, an extended temporary waiver period may be approved where the Director is satisfied that a longer period is reasonable based on the circumstances of the case (e.g., the absent spouse is incarcerated).

The length of the waiver and the rationale for the waiver must be clearly explained and documented on file, and the circumstances should be clearly documented and reviewed at the end of the waiver period.

ODSP staff must approve the waiver and a written decision must be provided explaining whether or not the waiver is granted. Where a waiver is granted, the applicant/recipient should be advised in writing that the waiver is granted, the reason for the waiver, and that he/she is responsible for advising ODSP staff if circumstances change.

The pursuit of spousal support may be waived permanently in the following situations:

  • the whereabouts of the absent spouse cannot be located after a reasonable search period (e.g. two years);
  • the absence spouse is deceased; or
  • the Director is satisfied, based on the evidence available, that there is an ongoing risk of domestic violence and it would not be in the best interests of the applicant or recipient to pursue support.

The pursuit of spousal support may be waived temporarily in the following situations:

  • the absent spouse is in a non-reciprocating state or country (verification is required);
  • if the absent spouse is a student or incarcerated (Note: in the case of incarceration, a temporary waiver should be extended until one month prior to the scheduled release date);
  • where the support payor has been deported and there is, in the opinion of the Director, a reasonable prospect of receiving support;
  • the applicant/recipient cannot attend court for medical reasons;
  • if the applicant/recipient indicates or provides evidence of domestic violence that can be verified (e.g. by police or doctor) or a restraining order is in effect against the other spouse; or
  • other special circumstances.

In cases where the address or the location of the absent spouse is not known, ODSP staff should advise the applicant/recipient that it is his/her responsibility to make reasonable efforts to pursue support. Applicants/recipients are required to advise ODSP staff of the whereabouts of the absent spouse if they become known to them.

Deferral of Spousal Support

Spousal support action may be deferred when an applicant or recipient has made an effort to meet his or her obligation to pursue support, but further action is required by a third party (e.g. awaiting a Legal Aid Ontario referral).

In this circumstance, an applicant or recipient does not have his or her obligation to pursue support waived. These individuals have met their obligation, but further action on their part is deferred, pending other activities by third parties, such as Legal Aid Ontario.

The recipient is responsible for notifying his or her caseworker of any change in his or her circumstances.

Determining if a Legal Obligation to provide Spousal Support Exists

To determine if another person has an obligation to provide spousal support to the applicant/recipient under the Family Law Act (FLA) or the Divorce Act, the following factors can be considered:

  • the spousal status of the applicant or recipient;
  • the length of time the applicant or recipient and the other person cohabited;
  • the length of time since the applicant or recipient was deserted or separated; or
  • whether the applicant or recipient has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.

Completion of the Declaration of Support/Maintenance (Form 2212)

Effective January 1, 2017, the Declaration of Support/Maintenance (DSM) is no longer a mandatory form that has to be completed for child support payments. The form can be used on a voluntary basis to help an applicant or recipient pursue child support by providing any level of details regarding child support payments. For example, the form can be used to provide the name of the payor or to provide information related to the amount of the child support payments.

The DSM must be completed for spousal support payments. It should be completed on each absent payor who has been determined to have an obligation to support an applicant/recipient or his/her spouse.

Necessary Steps. Domestic Contracts

The necessary steps that should be taken by an applicant/recipient to have a domestic contract enforced for spousal support include:

  • filing the domestic contract with the court;
  • filing the domestic contract with the Family Responsibility Office (FRO) by completing a Registration Package; and
  • filing a Statement of Arrears with the FRO.

A spousal support order may need to be re-filed with the FRO when it is an out-of-province order or an order previously withdrawn from FRO enforcement. In addition, the applicant/recipient should complete a filing package which contains information about the payor (e.g. name, birth date, Social Insurance Number, address, employment information) to assist the FRO to enforce the domestic contract. The applicant/recipient should also complete a Statement of Arrears that sets out the support due and the support paid from the date of the court order until the date the order is actually filed with the FRO.

The Registration Package and Statement of Arrears are accessible on the FRO’s website. The form may be completed on-line or may be printed and completed by hand.

Spousal support orders/domestic contracts should be reviewed at the time of the information update to determine if the payor’s financial circumstances have significantly improved. Changes in circumstances may include increases to the payor's income due to new employment or a substantial windfall or decrease in expenses. In cases where the spouse may be in a position to contribute an increased level of support, action must be taken by the applicant/recipient to obtain this support.

In cases where a support order/domestic contract contains provisions for a cost of living increase, the spousal support order/domestic contract should be reviewed on the anniversary date to ensure that the increase has been applied.

The Role of the Family Responsibility Office - Spousal Support

The FRO is a division of the Ministry of Community and Social Services and operates under the authority of the Family Responsibility and Support Arrears Enforcement Act, 1996. The FRO receives every spousal support order made by a court in Ontario and enforces the amounts owed under the order.

The FRO has the legal authority to collect court-ordered spousal support payments and arrears of support and to take enforcement action against those who do not meet their family responsibilities. The FRO’s role is to enforce court orders for spousal support by ensuring that support payments flow from payors to recipients. It also enforces private written domestic contracts such as separation agreements, marriage contracts, cohabitation agreements and family arbitration agreements. These types of domestic contracts must first be filed with the Ontario Court of Justice or the Superior Court of Justice (Family Court) before they can be enforced by the FRO.

It is important to note that the FRO only enforces those provisions of an order or domestic contract dealing with spousal support.

For general inquiries about FRO and recent transactions on a recipient/payor’s case, FRO may be reached at (416) 326-1818 or toll-free at 1-800-267-7263 (FRO 7 digit case number is needed when a call is made). To inquire about a specific case, payors and recipients may contact FRO at (416) 326-1817 or toll-free at 1-800-267-4330.

Interjurisdictional Support Orders

The Interjurisdictional Support Orders Act, 2002 (ISO Act) applies to the registration of support orders made in reciprocating jurisdictions for enforcement in Ontario and the establishment of and change of a support order when the applicant/recipient lives in Ontario and the absent parent or spouse lives in a reciprocating jurisdiction.

A reciprocating jurisdiction is another province, territory, state or country that has entered into a formal arrangement with Ontario to enforce each other’s support orders. Reciprocating jurisdictions must have support laws that are similar to those in Ontario.

The ISO Act is provincial legislation that applies to support orders made under the FLA. It does not apply to support orders made under the Divorce Act which is federal legislation or where both parties live in Ontario.

To apply to register, establish or change a support order where the absent parent or spouse lives in a reciprocating jurisdiction, a standard form must be used by the applicant/recipient which can be accessed through the courts, Family Law Information Centres and Legal Aid Offices or by contacting the Interjurisdictional Support Orders Unit of the FRO at (416) 240-2410 or toll-free at 1-800-463-3533.

An up-to-date list of reciprocating jurisdictions can be accessed on e-laws by viewing Ontario Regulation 53/03, Reciprocating Jurisdictions under the ISO Act.

Treatment of Matrimonial Home and Mortgage Payments

Where the applicant/recipient has a shared interest in a matrimonial home, an obligation to pay the mortgage may exist. The amount of the mortgage payments will usually be divided equally between the spouses. Where the applicant’s/recipient’s former spouse is paying the full mortgage amount, 50% of this may be deemed to be a payment made on behalf of the applicant/recipient and would therefore be considered income for ODSP purposes.

In some cases, the applicant/recipient may not have an obligation to pay the mortgage on the property. For example, there is a court order or minutes of settlement which indicate that the obligation to pay the mortgage is solely with the former spouse remaining in the home. Where there is no obligation on the recipient to pay the mortgage, the payments would not be considered income as they are not payments made on behalf of or for the benefit of the recipient.

In addition, there may be cases of family violence where the applicant/recipient has fled a jointly owned home, and the remaining former spouse continues with the mortgage payments. Such an applicant/recipient may have little or no recourse to absolve himself or herself of the obligation to pay the mortgage payments and pursuing equalization may not be an option.. As such, the family violence policy in the context of pursuing support would be applicable.

The applicant’s/recipient’s interest in the matrimonial home is an asset and may be exempt if, in the circumstances, the applicant/recipient is making reasonable efforts in the circumstances to sell the property or divest themselves of their share. The matrimonial property will usually be divided between the parties (known under family law as “equalization”), and when this happens, the applicant/recipient will no longer have an interest in the home.

Child Support Arrears Owing to the Government

Arrears can accumulate on cases assigned to the Minister until December 31, 2016 if the payor is not making regular support payments. The government is committed to ensuring that arrears owing to it are protected. To assist the government in recovering outstanding support arrears, the Court rules and the Family Law Act include the right of the assignee Minister to be notified of and to participate in court proceedings affecting their arrears.

The Ministry’s Legal Services Branch is responsible for protecting arrears owing to the government when efforts are made by payors to rescind them. Legal Services Branch must be consulted immediately if court documents related to support are delivered to a local office, and the documents must be forwarded to the Legal Services Branch.

Post-Secondary Education Tuition for a Dependent Adult Paid by a Non-Custodial Parent

If there is a support obligation on the part of a non-custodial parent and he or she is paying tuition as part of that support obligation, then the payment of the post-secondary education tuition by a non-custodial parent for a dependent adult who is in the benefit unit would be considered exempt as income.

If no support obligation exists or if the support obligation is being met and the tuition is being paid in addition to support, the tuition may be exempt as income as an approved disability-related item if the criteria in Directive 5.9 Disability-Related Items and Services Directive . If the disability-related items and services exemption does not apply, then the tuition would be treated as a gift or voluntary payment and exempt up to $10,000 per benefit unit member for any 12 month period.

Legal Costs Incurred to Obtain Retroactive Support Payments

Where a lawyer is retained to assist an applicant or recipient to obtain retroactive support payments, and, as a result, the applicant or recipient receives a lump sum amount, ODSP will allow the legal fees to be paid from the gross amount, and will consider the net amount as income.

In cases where the Ministry expects to recover income support paid to a recipient, recovery can only be made from funds that are considered ‘income’ [in other words, from the net amount].

If the net amount is sufficient to cover the income support paid, the Ministry expects full payment. If the net amount is not sufficient to cover the income support paid to the recipient, the Ministry accepts the entire net amount in satisfaction of its claim. Given this, no overpayment is established.

If the Ministry receives the entire gross amount by way of assignment and the recipient has incurred legal costs to obtain the support payments, the ODSP local office should return an amount equivalent to the legal costs to the recipient.

Related Directives:

5.1 Definition and Treatment of Income
5.8 Gifts and Voluntary Payments
5.9 Disability-Related Items and Services
5.11 Post-Secondary Education