Can I Stop Paying Spousal Support If My Ex Denies Parenting Time?

It is frustrating to keep sending support payments when you believe your ex is keeping you from the children. Many payors ask whether they can hold back support until parenting time is respected.

This article explains how a support order generally works, what can happen if you stop paying, and the proper ways to ask for a change. It is general information, not advice on your situation.

Why stopping payments on your own is risky

A spousal support order or a support term in an agreement is a legal obligation. Only a court can change a support order, not FRO. That means that, until a court says otherwise, the amount in the order is generally still owing, and missed payments can build up as arrears.

Support and parenting time are usually dealt with as separate issues. Whether a particular order or agreement allows any link between them depends on its wording and your facts, so have a lawyer read it before you act.

What can happen if payments stop

Court-ordered spousal support is automatically filed with FRO, which collects from the payor and pays the recipient. If you miss payments, the recipient can complete a Statement of Arrears to collect unpaid support and interest.

FRO may also send a support deduction notice to your income source, such as an employer, which must remit the amount to FRO.

The proper way to ask for a change

If something has changed, the route is a court application, not self-help. Under the Divorce Act, a court varying a spousal support order must be satisfied that a change in the condition, means, needs or other circumstances of either former spouse has occurred, and it may vary, rescind or suspend an order retroactively or prospectively.

In practice, courts look for a material change. The SSAG guide describes this as a change that is substantial, continuing and that, if known at the time, would likely have resulted in a different order. A variation is neither an appeal nor a hearing from scratch.

If your income has dropped significantly, the SSAG ranges move down, and ability to pay can reduce the range substantially. A court may also add a review term if the drop may not be permanent.

• If the other party agrees to a change, file a consent motion to change (Form 15C) with a financial statement (Form 13), Certificate of Financial Disclosure (Form 13A), Form 14B and a draft order (Form 25).
• If the other party disagrees, file a motion to change (Form 15) with Forms 13, 13A and 25.
• After an order changes, send the new order to FRO through FRO Online, by fax or by mail.

If you are in trouble with payments already

To avoid enforcement, pay in full and on time, and contact FRO immediately if you are falling behind to set up a payment plan. Respond to every notice before its deadline and attend a default hearing even if you have filed forms.

Before a driver's licence suspension takes effect, FRO sends a notice with a deadline. You can pay all arrears, enter a voluntary payment plan, or ask the court for a refraining order, which must be requested before the notice deadline. Whether past arrears can be reduced depends on the facts, and no outcome can be promised.

What to do next

• Keep paying what the order or agreement requires while you sort out the next step.
• Keep a dated record of denied or missed parenting time: messages, calendars and any requests you made.
• Read your order or separation agreement for terms on parenting, review dates, retirement or remarriage.
• Gather income records in case you need to ask for a change in support.
• Speak with a family lawyer about whether to pursue the parenting issue, a support change, or both.

Frequently asked questions