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Section 33 - Order for Support
Ontario Family Law Act
(1) A court may, on application, order a person to provide support for his or her dependants and determine the amount of support.
[This provision of the Family Law Act allows the court to order support for a dependant - this could be child support, spousal support, or even support for a parent.]
(2) An application for an order for the support of a dependant may be made by the dependant or the dependant's parent.
[While a child can technically request child support, normally the parent requests child support on the child's behalf.]
(3) An application for an order for the support of a dependant who is the respondent's spouse, same-sex partner or child may also be made by one of the following agencies:
(a) the Ministry of Community and Social Services in the name of the Minister;
(b) a municipal corporation, including a metropolitan, district or regional municipality, but not including an area municipality;
(c) a district social services administration board under the District Social Services Administration Boards Act;
(d) a band approved under section 15 of the General Welfare Assistance Act; or
(e) a delivery agent under the Ontario Works Act, 1997,
if the agency is providing or has provided a benefit under the Family Benefits Act, assistance under the General Welfare Assistance Act or the Ontario Works Act, 1997 or income support under the Ontario Disability Support Program Act, 1997 in respect of the dependant's support, or if an application for such a benefit or assistance has been made to the agency by or on behalf of the dependant.
[In certain cases, an application for child support can be brought by a government agency.]
(4) The court may set aside a provision for support or a waiver of the right to support in a domestic contract or paternity agreement and may determine and order support in an application under subsection (1) although the contract or agreement contains an express provision excluding the application of this section,
(a) if the provision for support or the waiver of the right to support results in unconscionable circumstances;
(b) if the provision for support is in favour of or the waiver is by or on behalf of a dependant who qualifies for an allowance for supoprt out of public money; or
(c) if there is default in the payment of support under the contract or agreement at the time the application is made.
[The court always has the right to review and change any agreement to support.]
(5) In an application the court may, on a respondent's motion, add as a party another person who may have an obligation to provide support to the same dependant.
[This is often used in cases when child support is requested from a step-parent - the step-parent will then add the biological parent as a party.]
(6) In an action in the Ontario Court (General Division), the defendant may add as a third party another person who may have an obligation to provide support to the same dependant.
(7) An order for the support of a child should,
(a) recognize that each parent has an obligation to provide support for the child;
(b) apportion the obligation according to the child support guidelines.
[Normally, the base amount of child support is calculated according to the child support guidelines.]
(8) An order for the support of a spouse or same-sex partner should,
(a) recognize the spouse's or same-sex partners contribution to the relationship and the economic consequences of the relationship for the spouse or same-sex partner;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse or same-sex partner to become able to contribute to his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).
[These are the factors a court considers in determining spousal support.]
(9) In determining the amount and duration, if any, of support for a sopuse or same-sex partner or parent in relation to need, the court shall consider all the circumstances of the parties, including,
(a) the dependant's and respondent's current assets and means;
(b) the assets and means that the dependant and respondent are likely to have in the future;
(c) the dependant's capacity to cnotribute to his or her own support;
(d) the respondent's capacity to provide support;
(e) the dependant's and respondent's age and physical and mental health;
(f) the dependant's needs, in determining which the court shall ahve regard to the accustomed standard of living while the parties resided together;
(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(h) any legal obligation of the respondent or dependant to provide support for another person;
(i) the desirability of the dependant or respondent remaining at home to care for a child;
(j) a contribution by the dependant to the realization of the respondent's career potential;
(l) if the dependant is a spouse or same-sex partner,
(i) the length of time the dependant and respondent cohabited,
(ii) the effect on the spouse's or same-sex partners earning capacity of the responsibilities assumed during cohabitation,
(iii) whether the spouse or same-sex partner has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
(iv) whether the spouse or same-sex partner has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
(v) in the case of a spouse, any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family's support,
(v.1) in the case of a same-sex partner, any housekeeping, child care or other domestic service performed by the same-sex partner for the respondent or the respondent's family, as if the same-sex partner were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the support of the respondent or the respondent's family.
(vi) the effect on the spouse's earnings and career development of the responsibility of caring for a child; and
(m) any other legal right of the dependant to support, other than out of public money.
[These are the factors that a court considers when deciding the amount and duration of spousal support. In short, determining this is more of an art than a science and frankly, a bit of a crap shoot.]
(10) The obligation to provide support for a spouse or same-sex partner exists without regard to the conduct of either spouse or same-sex partner, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.
[Spousal support is no fault.]
(11) A court making an order for the support of a child shall do so in accordance with the child support guidelines.
(12) Despite subsection (11), a court may award an amount that is different from the amount that would be determined in accordance with the child support guidelines if the court is satisfied,
(a) that special provisions in an order or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and
(b) that the application of the child support guidelines would result in an amount of child support that is inequitable given those special provisions.
[In a few circumstances, a person can pay less than the table amount of child support. This is the section of the Ontario Family Law Act that permits this.]
(13) Where the court awards, under subsection (12) an amount that is different from the amount that would be determined in accordance with the child support guidelines, the court shall record its reasons for doing so.
(14) Despite subsection (11), a court may award an amount that is different from the amount that would be determined in accordance with the child support guidelines on the consent of both parents if the court is satisfied that,
(a) reasonable arrangements have been made for the support of the child to whom the order relates; and
(b) where support for the child is payable out of public money, the arrangements do not provide for an amount less than the amount that would be determined in accordance with the child support guidelines.
(15) For the purposes of clause (14)(a), in determining whether reasonable arrangements have been made for the support of a child,
(a) the court shall have regard to the child support guidelines; and
(b) the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the child support guidelines.
Return to Family Law Act index.
HOW WE CAN HELP YOUObtained Spousal Support
A client came to Behrendt Law Chambers to represent her in a divorce against her self-employed husband. Her husband refused to pay her spousal support, claiming that his business was not earning much money. We managed to show that his business was earning more than he claimed and obtained spousal support for his client.
Defended Spousal Support Payor
This is an era of record high spousal support awards. In one recent case, a judge awarded 60% of the family income to go to the wife as combined spousal support and child support for 2 children. Nowadays judges don't ask whether there is an entitlement to spousal support, this is assumed. The judges only ask "how much spousal support?" Behrendt Law Chambers has represented many spousal support payors, and successfully minimized the amount of spousal support they needed to pay. Given that the amount of spousal support awarded is such a grey area of family law, this is one area in which a good lawyer can make a difference in your case.