If you are either a support payor or a support recipient, and wish to vary or change the amount of child support previously ordered by the Court, or as set out in a Separation Agreement, you may have the level of support changed by bringing a Motion to Change.
On a Motion to Change, the Court may change the level of support if there has been a material change in circumstances, such as the payor’s income has increased or decreased, the child’s living arrangements have changed, or if the support recipient is incurring additional section 7 or extraordinary expenses for the child.
The following is a brief overview of a Motion to Change.
Filing a Domestic Contract (Separation Agreement)
In the event the amount of support that is to be paid, is contained in a Separation Agreement, you must file the Agreement with the Court in order to proceed with a variation or change. This is done by completing an Affidavit for Filing of a Domestic Contract, and attaching the Agreement to the Affidavit along with the Support Deduction Order (SDO) and Support Information Form. These forms are filed at the Ontario Court of Justice level. Once the Affidavit is filed, the Agreement can then be varied in the same manner as if it was an actual Court Order.
Motion to Change with Consent
If you and your former spouse (partner) both agree to vary or terminate the support provisions, you would complete and file a Motion to Change along with a Consent Motion to Change Child support. The forms are signed by both of you and then filed with the Court. At the time the material is filed, you would also submit a draft Order setting out the change you would like to have made to the original Order. Once the necessary documents have been submitted, they will be provided to a Judge for granting.
Once the amending Order has been granted, a copy of it is forwarded to the Family Responsibility Office for enforcement.
Motion to Change without Consent
In the event you and your spouse do not agree on the variation of support, the person seeking the change, would have to complete and file a Motion to Change and Change Information Form. You would have to file the documents in the same level of Court that granted the initial Order, ie. If the initial Order was granted by the Ontario Court you would proceed to vary it at the same Court and alternatively, if it was granted at the Superior Court level it would have to be varied by the same Court.
Once the requisite forms are completed they are taken to the Court for issuing and filing. At that time, a copy of all documents would then be served upon your spouse. They would then have 30 days in which to file a Response to the Motion to Change.
In the event the other side does not file any responding material, you may be at liberty to bring the matter before a judge on an unopposed basis. In such a scenario, a judge may grant the relief you were seeking based on the other side not filing a defence.
As the determination of child support is based on income, if the Motion to Change is not on consent, it will be necessary for the responding party to serve and file a Form 13 Financial Statement along with copies of the past three years Notices of Assessments and recent pay slip. If the support receipient is seeking an order that the payor contribute towards section 7 or extraordinary expenses, they must complete a Form 13 Financial Statement as well.
If in fact your spouse does serves and files a Response, you would first appear in Court at what is referred to as the First Appearance Date. At the time, it is confirmed that all requisite material has been filed and then a Case Conference date is scheduled which is the first appearance before a Judge.
It is usually at the Case Conference where a judge will make necessary orders on next steps to be taken if the parties cannot consent. Such steps will usually include making orders with respect to timeline of exchanging the Affidavits in support of the motion, timelines for exchanging outstanding disclosure, timelines for questioning of the parties, and setting a date for a Settlement Conference and the actual hearing of the Motion to Change.
For more information about a Motion to Change, or about obtaining a divorce in Ontario, please contact our Toronto divorce lawyer.
NOTICE AND DISCLAIMER: The material posted on this website is for informational purposes only and should not be relied upon as legal advice. If you are in need of legal advice relating to your particular situation it is highly recommended to consult with a lawyer.
Helpful Resources:
Divorce and Separation
Family Justice Services
Child Custody and Access
Spousal Support
Child Support
Division or Equalization of Family Property
Treatment of a Matrimonial Home
Enforcement of Support Payments
Child Protection
Child Adoption
