Lost Your Job While Paying Spousal Support in Ontario? Next Steps

Losing your job is stressful enough without a spousal support order still coming out of your account each month. It is natural to wonder whether you can pause payments until you are back on your feet.

This article explains, in general terms, how Ontario handles a payer's drop in income: what to do first, how a court looks at the change, how to ask for a reduction, and what can happen to unpaid amounts in the meantime. Every situation turns on its own facts, so treat this as a map, not advice.

Why you should not simply stop paying

The Family Responsibility Office (FRO) collects and passes on support, but it cannot change what an order says. Only a court can change an order, through a motion to change. When a court orders spousal support in Ontario, the order is automatically filed with FRO, which collects payments from the payer and sends them to the recipient.

If payments stop, FRO has a long list of enforcement tools. These include:

• Support deduction orders sent to employers, bank garnishment, and diversion of federal payments such as tax refunds, EI, CPP and OAS.
• Suspension of your driver's licence and federal licences such as passports.
• Reporting to credit bureaus after more than 60 days without payment, and registering a lien or writ of seizure and sale against property.
• A default hearing, where a judge can order jail of up to 180 days, and a possible $400 administrative fee.

A separation agreement is treated differently. FRO does not receive agreements automatically; the agreement must be filed with a court and then registered with FRO before FRO can enforce it. Even so, what your agreement says still matters, so check it before assuming anything.

What a court looks at when your income drops

Under the Divorce Act, a court can vary, rescind or suspend a spousal support order, retroactively or prospectively, on the application of either former spouse. Before it does, it must be satisfied that either former spouse's circumstances have changed since the order or the last variation, and it must take that change into account. How this works for an order made under another law, such as for unmarried couples, depends on your situation, so it is worth confirming with a lawyer.

How you lost the income often matters. If a spouse is not working but should be, a court can readily impute minimum-wage income, and imputing more than that requires evidence. Section 19 of the Federal Child Support Guidelines is often the basis for imputing income. In plain words, a judge may ask whether the drop in income is real and unavoidable, or whether you could reasonably be earning more.

The Spousal Support Advisory Guidelines are not law, but judges often base decisions on them. On a variation they should be used with considerable caution where complex entitlement issues arise.

How to ask for a reduction

The usual route is a motion to change. After it is issued, you must serve the other spouse within 30 days and file an Affidavit of Service (Form 6B). The other spouse then has 30 days to respond, or 60 days if they live outside Canada or the United States.

Some orders and agreements contain a review clause. A review is different from a variation: a variation requires a material change in circumstances, while a review is more like an initial application, and the clause should limit what is reviewed. Reading the exact wording of your order or agreement is a sensible first step.

What happens to arrears while you wait

Under the Divorce Act, a court can vary support retroactively as well as prospectively, so a change is not necessarily limited to the date you apply. Whether a court will reach back, and how far, depends on your situation and on which law your order was made under, so it is worth confirming with a lawyer. Do not assume that a reduction will cover a period in which you paid nothing.

Meanwhile, unpaid support can be collected. FRO can take up to 100% of arrears from an account in your sole name, but from a joint account no more than 50%, and the money is held for 30 days in case a co-holder disputes it. FRO can also report a payer to a professional organization after three months without payment.

What to do next

• Keep paying what you can while you sort things out, rather than going silent.
• Gather your order or agreement, termination or severance papers, recent pay stubs and tax returns.
• Keep a record of your job search, applications and any benefits you receive.
• Note any other changes, such as health or retirement plans, that affect your income.
• Speak with a family lawyer about whether to bring a motion to change, and do it soon.

Frequently asked questions