Making Your Ex Disclose Income for Child Support in Ontario

Child support is mostly based on the paying parent's income. If you think the other parent earns more than they say, or your order is a few years old and the numbers need updating, you need reliable figures. You cannot fairly guess your way to the right amount.

Ontario has rules that require income information to be shared, both when support is first set and afterwards. This article explains what must be disclosed, when, and what a court can do if a parent refuses. A lawyer can confirm how these rules apply to your situation.

What a parent must disclose when income is in issue

When a parent's income is in issue, the Child Support Guidelines require that parent to provide every personal income tax return and every notice of assessment and reassessment for the three most recent taxation years. An employee must also provide the most recent statement of earnings showing year-to-date pay.

Self-employed parents have more to provide. Ontario's court guide says they must also give their business or professional practice financial statements for each of the past three years, along with a breakdown of salaries, wages and benefits paid to others.

Income for child support starts from the Total income figure on the tax return. If that figure would not be the fairest measure, for example because of irregular bonuses or overtime, the court may look at income over the last three years.

Updating figures after an order is made

Disclosure does not stop once an order is made. Under Ontario's section 24.1, each person whose income was used to set a child support order must give every party their latest tax return and notice of assessment or reassessment. This is due no later than 30 days after each anniversary of the order, together with current information on section 7 expenses. The parties may agree otherwise.

You can also ask. On written request, made not more than once a year, a paying parent must provide income documents for the three most recent taxation years. The deadline is 30 days after receiving the request, or 60 days if the parent lives outside Canada and the United States.

What you must serve when you make a support claim

If you are the one claiming support in court, you have disclosure duties too. A support claim requires a financial statement, which is Form 13, or Form 13.1 if property is also claimed. A support claimant must also serve the income information described in section 21(1) of the guidelines, and for a child support claim, proof of any special or extraordinary expenses.

• Form 13 or Form 13.1, depending on whether property is also claimed
• Your own income documents under the guidelines
• Proof of special or extraordinary expenses, such as post-secondary education costs

If the other parent refuses or stalls

If a parent does not comply with the disclosure rules, the other parent may apply to court. The court may draw an adverse inference and impute income. Imputing income means the court treats the parent as earning a certain amount even if their documents do not show it. The guidelines list failing to provide income information when legally required as one situation where this may happen.

There are procedural tools as well. If a party fails to serve or file required financial documents, the court can order them to do so on a motion, and the court must also order costs. If a person disobeys an order in the case, including a disclosure order, the court may make further orders, including costs, dismissing a claim, or striking out an application, answer or other document.

Courts can also impute income for other reasons, such as intentional under-employment or unemployment, diverted income, or unreasonable deductions. Under-employment that is required by a child's needs or a parent's reasonable educational or health needs is an exception. Whether any of these applies depends on the facts.

Divorce Act cases and other points to know

Married parents who are divorcing are under the Divorce Act, which requires the court to follow the applicable guidelines. Never-married parents, and married parents separating without divorcing, are under the Family Law Act and O. Reg. 391/97. The rules are similar, but the section numbers differ. Ontario's section 24.1 annual disclosure duty, for example, has no federal match, so check which set of guidelines governs your case.

If both parents agree in writing on a parent's annual income, the court may use that figure if it considers it reasonable in light of the income information provided. Agreeing can save time, but it is wise to be sure the figure is accurate before you sign.

What to do next

• Check whether your order or agreement says anything different about annual disclosure, and note the anniversary date of the order.
• Gather your own tax returns, notices of assessment and recent pay statement.
• Send a written request for the other parent's three years of documents, and keep a dated copy.
• Diarize the 30-day deadline (or 60 days if they live outside Canada and the U.S.).
• If documents do not arrive, speak to a lawyer about a motion for disclosure and about asking the court to impute income.

Frequently asked questions