Changing a Support Order in Ontario: The Change in Circumstances Test

Losing a job, having your hours cut or seeing your income drop can make a support order feel impossible overnight. The payments set in your order were based on the facts at the time, and those facts may no longer be true.

The law does allow support orders to be changed, but not just because things got harder. A court looks for a specific kind of change, and the test is slightly different for child support and spousal support. This article explains the test, what a court can do, and what to think about before you apply.

What counts as a change in circumstances

When a married couple's support order was made under the federal Divorce Act, the court cannot simply revisit it because one person asks. Before varying a child support order, the court must satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred. For spousal support, the court must find a change in the condition, means, needs or other circumstances of either former spouse.

The Child Support Guidelines define the change for child support in two ways, depending on how the original order was set.

The Divorce Act applies to married spouses only. If you were never married, a different statute governs your order, and a lawyer can confirm which rules apply to you.

Losing a job or income: how it fits the test

For a parent paying table child support, the question is whether the change in income would result in a different order. A lasting drop in income may be that kind of change if it would result in a different order. A short gap between jobs, a temporary reduction or a voluntary choice to earn less may be viewed very differently, and the outcome depends on the facts.

For spousal support, a change in the means or needs of either former spouse is what the court looks at. That works in both directions. A recipient's income going up, or a payor's going down, can both be relevant.

• Whether the change is temporary or likely to last.
• Why your income changed and what steps you took to replace it.
• Whether the other parent's or former spouse's situation has also changed.
• Whether a child's needs have changed, which can matter for child support.

What a court can do once a change is shown

Under the Divorce Act, a court of competent jurisdiction may vary, rescind or suspend an order, retroactively or prospectively. Varying means changing the amount or terms. Rescinding means cancelling. Suspending means pausing the order.

The power to act retroactively does not mean a court will always go back in time. How far back an order is changed, if at all, depends on the facts and is something to discuss with a lawyer. How timing affects your own situation depends on the facts, so it is worth confirming with a lawyer.

Where to apply and trying to resolve it first

Both the Superior Court of Justice and the Ontario Court of Justice hear child and spousal support matters. The Ontario Court of Justice does not hear divorce or property division. A family case usually starts in the municipality where you or your spouse lives, and if you are unsure you can call the family court office in your area.

Under the Divorce Act, parties to a proceeding must, to the extent appropriate, try to resolve the matters through a family dispute resolution process. In practice, many people start by asking the other person to agree to a change in writing, or by using mediation. An agreement that is only informal may be hard to rely on later, so ask a lawyer how to record it properly.

Why you should not simply pay less

If your support is enforced through the Family Responsibility Office (FRO), reducing payments on your own can lead to enforcement. FRO tools include bank garnishment, deductions from certain federal income, credit bureau reporting, driver's licence suspension, property liens and more. FRO may also charge a $400 administrative fee if it takes enforcement action.

If a default hearing notice arrives, it gives you 10 days to act, and a judge can order payment plans, change the support order or order jail time. If you miss a notice deadline, contact FRO right away. FRO's phone line is 416-326-1817 or 1-800-267-4330, Monday to Friday, 8:00 a.m. to 5:00 p.m..

What to do next

• Find your current order or agreement and note the date, the incomes it relied on and who it covers.
• Gather proof of the change: termination letter, pay stubs, records of job searching, benefit statements and tax documents.
• Write down what changed for the other side too, if you know it.
• Keep paying what you can and keep records of every payment while you sort out next steps.
• Raise the change with the other person in writing, and consider mediation.
• Speak to a family lawyer about whether to apply, how soon, and how far back a change might reach.

Frequently asked questions