What Happens to Child Support When the Payor Goes to Jail?

When a parent who pays child support is sentenced or detained, two questions come up fast: does support keep adding up while they are away, and can it be reduced? Recipients ask the same thing from the other side, worried about how long the money will keep coming.

This article explains the general Ontario rules that apply to any change in a payor's situation. It does not set out special jail rules, because how a court handles custody depends on the facts and should be confirmed with a lawyer.

The order keeps running until it is changed

Support ends in specific ways. FRO describes them as a court order, a terminating event that both parties agree on, or a written agreement between the payor and the recipient. Being in custody is not on that list as an automatic end point. FRO also tells payors to keep paying until it says in writing that they can stop.

The same goes for the amount. FRO says it cannot change what a payor pays, and only a court can change the amount of support. If the order says a payor owes a certain amount each month, that amount is generally still the starting point until a court says otherwise.

What happens to the missed payments

Missed support is called arrears. If a payor cannot pay because their income stops, the unpaid amounts do not simply disappear. The order has not changed, so the shortfall is generally treated as owing.

FRO says a payor who is having trouble paying should contact it right away, and that a voluntary arrears payment schedule can be worked out.

• Contact FRO as early as possible and explain what has changed.
• Ask about a voluntary arrears payment schedule.
• Do not assume a schedule changes the support amount; only a court can do that.

Asking a court to change the support

A court can vary, rescind or suspend a support order. Under the Guidelines, a change in circumstances that would result in a different child support order allows variation, and the Divorce Act requires the court to be satisfied that such a change has occurred before it varies a child support order.

A major change in income is the usual kind of change people point to. But courts do not simply accept the label. If a payor says income has dropped, the court looks at why. A court may impute income where a spouse is intentionally under-employed or unemployed, and it has discretion over the amount. A voluntary income drop must be explained. On the other hand, once a payor becomes unintentionally unemployed, it may not be appropriate to impute the former full salary.

How these ideas apply to a person in custody is a question that depends on the circumstances, including the length of time, any income or assets the payor still has, and the reason for the change. This is where a lawyer's advice is important.

Other points to know

Where a payor or child would otherwise suffer undue hardship, the Guidelines let a court award a different amount, with examples such as unusually high debts or unusually high expenses of exercising parenting time. Whether any of that fits a particular situation is for a court to decide.

What to do next

• Keep a copy of the current support order or agreement.
• Contact FRO right away about any missed or expected missed payments.
• Gather recent income records, bank statements and a list of any assets.
• Do not rely on a verbal agreement to stop paying; support ends through a court order, an agreed terminating event or a written agreement.
• Speak with a family lawyer soon about whether to apply to vary the order.
• If you are the recipient, keep records of what has and has not been received.

Frequently asked questions