January 2017

5.5: Family Support

Legislative Authority

Sections 13, 14, 23, 59 and 69 of the Act.
Sections 13(1), 15, 54(1), 62(2) and 65.1 of Regulation 134/98.
Sections 33(3) and 34(3) and (3.1) of the Family Law Act.
Sections 2(1), 4(1) and 7 of Regulation 114/99 (Courts of Justice Act, Family Law Rules).

Audit Requirements

Child Support

  • Child support documents are visually verified for applicants or existing clients with new or changed child support payments.
  • A voluntary completion of the Declaration of Support and Maintenance form (#2212) to help the client pursue child support where requested.

Spousal Support

  • Random file reviews are completed to ensure that documentation related to support is on file, including:
  • the Declaration of Support and Maintenance form (#2212);
  • any court orders for support;
  • affidavit of verbal agreement; and/or
  • voluntary agreement for support.
  • Random file reviews are completed on Family Responsibility Office Case Management System (FCMS) records as required.
  • Documentation is on file to support waiver decisions, including decisions to continue or extend the waiver period, clearly showing the information necessary to support the decision has been received, assessed, and verified.
  • Waivers are reviewed when the waiver period expires.
  • Follow-ups are completed and documented.
  • A Declaration of Support and Maintenance form (#2212) has been completed for every absent person who has a support obligation.
  • A Declaration Form (#0311) and Agreement to Reimburse Form (#2208) have been completed where spousal support is not in pay.
  • All assignments and directions are cancelled as appropriate.

Application of Policy

Effective February 1, 2017, child support payments are fully exempt as income and do not impact a person’s eligibility for Ontario Works.

Child support payments that are exempt are those made by someone who has a legal obligation to support a member of the benefit unit, regardless of that member’s age: this may include children under 18, dependent adults, and recipients eligible for Ontario Works 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.

Pursuit of Child and Spousal Support

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

An Ontario Works applicant/recipient is required to pursue spousal support payments as a condition of eligibility.  Eligibility does not depend on the actual receipt of spousal support payments, but on the efforts being made to obtain support. Reasonable efforts may include attending court appointments, and providing Ontario Works staff 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.

If reasonable efforts are not being made to pursue spousal support, assistance may be denied or reduced. The reduction of assistance would be equal to the amount of the support that would have been available, had reasonable efforts been made to pursue it.

Assistance is not reduced if the requirement to pursue spousal support is waived, or if the failure to make reasonable efforts is the result of factors outside the recipient’s control. In addition, individuals at risk of domestic violence are not expected to pursue spousal support and may be granted a waiver (See the Waivers section for more details).

The Ontario Works Act, 1997 and its regulations require applicants and recipients to pursue any income that may be available to them; however, it does not require applicants or recipients to resolve other legal issues, such as custody or access, which may arise during the course of obtaining payment for spousal support. Where there are issues in addition to support, referral to duty counsel or to Legal Aid Ontario, as well as Family Law Information Centres may be appropriate.

Prior to an applicant or recipient being expected to pursue spousal support from another person, there must be evidence that the person has an obligation to support the applicant or recipient.

A support provision in the form of a court order, private agreement or domestic contract is acceptable as evidence.

An Administrator may designate Family Support Workers (FSWs) or provide other forms of support to assist applicants, recipients and dependents in taking whatever action is necessary to pursue financial support from persons with a legal obligation to provide it.

If spousal support provisions are in place, and the support is in pay, it should be reviewed every 24 months or earlier if finances have changed.

Where a spousal support provisions are in place and the support is not in pay, 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, the client must: provide an affidavit that payments are not being received; complete the Declaration Form (Form 0311) – which states that the applicant/recipient did not receive/is no longer receiving payments; and the Agreement to Reimburse Form (Form 2208).  The affidavit and both forms must be kept in the master file.

If spousal support provisions are not in place, supports/resources can be made available to assist the parties in negotiating a support agreement as this process tends to be less adversarial, and reduces administrative costs. Advisory Spousal Support Guidelines are available online to help parties discuss the appropriate amount of spousal support to be paid. If the parties proceed to court, the court may consider these guidelines in determining how much spousal support should be paid, but they are not binding.

Processes for pursuing spousal support should be initiated within 120 days of grant.. These processes/activities may include: referral of the case to an FSW to review the merits of the case, commencing the negotiation of a voluntary agreement, establishing waivers, conducting searches, and/or initiating court proceedings.

Administrators should ensure that where possible support issues are addressed for recipients where a decision regarding eligibility for the Ontario Disability Support Program (ODSP) is pending.

Reporting Child and Spousal Support Payments

Applicants and recipients are required to report 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 February 1, 2017, they should be treated as exempt income.

If the payments are intended to cover a period before the exemption came into effect (i.e. prior to February 1, 2017), in which the client was in receipt of Ontario Works, the payments should be treated as income in the months intended and deducted from social assistance.

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

Child support payments for an adult disabled child on ODSP in their own right (ODSP recipient) will not be treated as income against the parent’s Ontario Works entitlement if the money is given directly to, or being used for the benefit of, the adult disabled child, as confirmed by the respective ODSP office. This exemption has been in effect since April 21, 2011, as per the Ontario Court of Appeal Decision regarding the treatment of child support paid on behalf of adult children who are ODSP recipients.

Assignments

Effective February 1, 2017, child and spousal support are 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 January 31, 2017).

For example, in March 2017, an Ontario Works 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.

Waivers

Effective February 1, 2017, a waiver for an applicant’s or 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.  Administrators may waive the requirement to pursue support on a temporary or permanent basis depending on the nature of these circumstances.

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 three to 12 months. However, an extended temporary waiver period may be approved where the Administrator is satisfied that a longer period is reasonable based on the circumstances of the case (e.g., the respondent is in receipt of ODSP, the respondent is incarcerated, etc.). The length of the waiver and the rationale for the waiver must be clearly explained and documented on file, and circumstances should be clearly documented and reviewed at the end of the waiver period.

The following are examples of when temporary waivers could be applied:

  • if the absent spouse is in a non-reciprocating state or country;
  • if the applicant or recipient cannot attend court for medical reasons;
  • if the applicant or recipient indicates or provides evidence of domestic violence or a restraining order is in effect against the absent spouse;
  • if the absent spouse is a student or incarcerated (Note: in these cases, a temporary waiver should be extended until one month prior to the scheduled release date);
  • where the payor has been deported and there is, in the opinion of the Administrator, a reasonable prospect of receiving support; or
  • where the whereabouts of the absent spouse are unknown and a search is being conducted.

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

  • the absent spouse is deceased;
  • the whereabouts of the absent spouse cannot be located after a reasonable search period (e.g., two years); or
  • the Administrator 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 participant to pursue support.

Where a waiver is approved, the recipient must be advised in writing of the approved waiver period and informed that he/she is responsible for notifying their caseworker or FSW of any change in their circumstances.

Approval of Waivers for Spousal Support

It is the decision of the Administrator to delegate authority for the approval of temporary and permanent waivers.

Deferral of Spousal Support

There are certain circumstances where support action may be deferred. Deferrals do not waive the obligation to pursue support.

Support action may be deferred when an applicant/recipient has made an effort to meet his/her obligation to pursue support but further action is required by a third party, such as a Family Support Worker or Legal Aid Ontario.

The recipient is responsible for notifying their caseworker of any change in their circumstances.

Determining if a Legal Obligation to Provide Spousal Support Exists

To determine if another person has an obligation to support the applicant or recipient under the Family Law Act or the Divorce Act, the following factors are considered:

  • the spousal status of the applicant or recipient;
  • the length of time the applicant or recipient and 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.

Declaration of Support or Maintenance Form (#2212)

Effective February 1, 2017, the Declaration of Support/Maintenance (DSM) Form is no longer a mandatory form that has to be completed for child support purposes. However, 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 . For example, the client can choose to provide the name, but not the birthdate, of the absent parent.

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.

Reviews should take place at a minimum of every 24 months except.

  • where permanent waivers have been applied; and
  • where a file has been transferred to another delivery agent where a permanent waiver has been applied.

Necessary Steps. Domestic Contracts for Spousal Support

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 at www.thefro.ca. The form may be completed on-line or may be printed and completed by hand.

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.

Change in Payor’s Circumstance in Relation to Spousal Support

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.

"Order for Support" Application by Recipient of Spousal Support

It is normal practice to assist applicants or recipients in making an application to the Ontario Court of Justice or the Family Court of the Superior Court of Justice for an order for spousal support.

An applicant or recipient is referred to the court to make an application for an order for support only if the following conditions can be met:

  • the whereabouts of the payor are known; and
  • there is some indication that they are able to provide support.

Where court action is necessary, only lawyers can participate in support actions to be heard in the Superior Court of Justice. In the Ontario Court of Justice and the Family Court of the Superior Court of Justice, a party may be represented by a non-lawyer, but only if the court gives permission in advance. Duty counsel may be available in the Ontario Court of Justice and the Family Court of the Superior Court of Justice.

Support arrangements can also be made out of court and FSWs should ensure that this option is fully explored with an applicant or recipient.

"Order for Support" Application by Delivery Agent for Spousal Support

A delivery agent may apply for an order for spousal support on behalf of the applicant or recipient. However, it is recommended that the delivery agent only initiate support action where the applicant or recipient is unable to do so for the following reasons:

  • emotional and physical health;
  • where violence, threats, or other forms of intimidation are likely to result as a consequence of the applicant or recipient taking action (however, a delivery agent should not proceed with an application for an order of support if there is any possibility of putting the applicant or recipient in further danger of domestic violence);
  • where unreasonable expenses would be incurred by the applicant or recipient (e.g., meals, transportation costs, child care, etc.), particularly in areas where distances are very great; or
  • other situations in which circumstances are considered to be such that the applicant or recipient is unable to initiate the action.

Spousal Support in Default

Where the support amount is considered in default, an affidavit or statement made by the applicant or the recipient indicating that the payments are not being received should be kept on file. Where there is an agreement for support as part of a support arrangement, and it is in default, the applicant or recipient is required to register the agreement for support with the court and file it with the Family Responsibility Office (FRO)..

Alternatively, if there is a change in circumstances and the payor is willing to cooperate, the parties may enter into an amended agreement to continue to provide an agreed upon amount of support without registering the amended agreement with FRO.

Transfer of Assets in Lieu of Support Payments

If a transfer of assets (or a transfer of equity in a shared asset) is accepted by a recipient in lieu of spousal support payments, these assets (or interest in a shared asset) should be treated in the same manner as all other assets an applicant or recipient may possess, when determining their eligibly and budgetary requirements.
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 Ontario Works 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.

Support Arrears Owing to the Delivery Agent and the Ministry

To assist assignees in recovering outstanding support arrears, the assignee has the right to be notified of and to participate in court proceedings affecting their arrears. Court documents are required to be served on assignees if the relief requested in the court proceeding affects the assignee’s interest. This includes proceedings to vary, rescind, suspend or enforce an order.

Delivery agents are expected to defend their arrears while the Ministry continues to be responsible for defending Family Benefit Act/ODSP arrears (and where agreed, Ontario Works arrears in uploaded cases).

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

If there is a child 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 child support obligation exists or if the child support obligation is being met and the tuition is being paid in addition to child support, the tuition may be exempt as income and treated as a gift or voluntary payment and exempt up to $6,000 per benefit unit member for any 12-month period.

Legal Costs Incurred to Obtain Retroactive Spousal Support Payments

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