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What should we do if we agree on child support?

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What should we do if we agree on child support?

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Reviewed: 
September, 2015
Answer

If you and your partner agree on child support, you can put what you've agreed to in a separation agreement. This is a written contract that you and your partner make.

Your separation agreement can deal with child support alone, or can include other things like spousal support, custody and access, and dividing property.

You don't have to wait until you and your partner agree on everything before making a separation agreement. You can make an agreement on the things you agree on, while working on other issues.

You can make a separation agreement if you're married or in a common-law relationship.

There are some good reasons to make a written separation agreement:

  • It can be faster, cheaper, and less stressful than going to court.
  • It lets you and your partner decide what works best for you and your family.
  • It's easier to prove what you and your partner agreed on if you have a written rather than a verbal agreement.
  • If there is a problem getting support payments, the Family Responsibility Office can help.

You can talk to a lawyer who can give you advice about the rules your separation agreement needs to follow to make it legal. If you can't afford to hire a lawyer, you may be able to find legal help in other places.

Legal Aid Ontario (LAO) has a service to help people with separation agreements. If your income is low enough, LAO covers the cost of up to 10 hours with a family lawyer to help you negotiate and draft a separation agreement.

1. Agree on the terms of child support

You and your partner can try to agree on child support without going to court. You can talk to your partner on your own, with the help of someone you both trust, or with the help of a lawyer or mediator.

Your separation agreement can deal with child support alone, or can include other things like:

You don't have to wait until you and your partner agree on everything before making a separation agreement. For example, you might agree on child support before you agree on how to divide property. So you can make a separation agreement about child support first.

Your child support agreement can include:

  • the names and birthdays of the children receiving child support
  • where the children will live
  • the amount of monthly child support payments
  • a separate amount for spousal support, if any
  • the date when child support will be paid, including a start date
  • the amount of additional payments for special or extraordinary expenses like daycare, if any
  • how child support payments will be made, for example, cash with a receipt, cheque, direct deposit, money order, interac e-transfer, or through the Family Responsibility Office
  • how you plan to deal with child support if there are changes in your situation such as changes in income or employment

Also try to agree on a way to get updated income information about the payor parent each year. You can agree to get copies of their most recent income tax return or notice of assessment every year. You can use this information to make sure the right amount of child support is being paid.

If your agreement also deals with spousal support, make sure that you have a separate amount for child support and spousal support payments. This is because they are treated differently when doing your income tax return.

Talking to your partner may not be the best option where there is a history of partner abuse.

Reviewed: 
January, 2017
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2. Make a separation agreement the court can enforce

Your separation agreement has to follow certain rules to make it binding and enforceable under the law. This means your agreement is made in a way that allows the court to order you or your partner to do what the agreement says, if either of you stop following it.

For example, the rules say before you sign your agreement, you must understand it, the process is fair, and that you and your partner give complete and honest information about your finances.

The law also says that the amount of child support you agree to has to be reasonable. Child support is reasonable if it is similar to the amount in the Government of Canada's child support tables or if other support arrangements have been made for the children.

This does not mean the amount you agree on has to be the same as the table amount. You can agree to an amount that is more or less than the table amount.

But if you or your partner later asks the court to order child support that is different from what was in your agreement, the court will look at what it would have ordered under the Child Support Guidelines and child support tables. This helps the court decide if the agreement is reasonable.

Legal Aid Ontario (LAO) has a service to help people with separation agreements. If your income is low enough, LAO covers the cost of up to 10 hours with a family lawyer to help you negotiate and draft a separation agreement.

Reviewed: 
October, 2016
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3. Get your own independent legal advice

You don't need a lawyer to make a separation agreement. But it's a very good idea for each of you to get your own legal advice before signing one.

You can talk to a lawyer who can help you understand:

You and your partner should not go to the same lawyer. It is important for each of you to get your own legal advice from different lawyers. This is sometimes called independent legal advice (ILA). The advice is independent because each lawyer is only working for one of you.

Besides helping you understand what you're agreeing to, there are other important reasons to get ILA. If you and your partner each get ILA, your agreement is less likely to be challenged later. And a court is more likely to order you and your partner to do what you agreed on.

If you decide not to get legal advice, you may not be able to argue later that you didn't understand your legal rights when you signed the agreement.

If you can't afford to hire a lawyer for your whole case, some lawyers will provide "unbundled" or "limited scope" services. This means you pay them to help you with part of your case, such as reviewing your separation agreement.

If you can't afford to hire a lawyer at all, you may be able to find legal help in other places.

Reviewed: 
October, 2016
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4. Sign your separation agreement

There are rules about how you make a separation agreement. These are called formal requirements. These rules say your agreement must be:

  • in writing
  • have a date
  • signed by both people who are making the agreement
  • witnessed, which means you and your partner have to sign the agreement in front of another person
  • signed by the witness

If you do not follow these rules, and you don't agree later about your separation agreement, the court does not have to order you or your partner to follow it.

There are no specific rules about what information you need to have in your separation agreement. But you should be as clear and detailed as you can so that the agreement shows exactly what you and your partner agreed to.

Reviewed: 
September, 2016
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5. Think about filing your separation agreement with the court

You or your partner can file your separation agreement with the court at any time as long as it has not been changed. This means that the court has a copy of your agreement.

Some of the reasons to do this are so:

  • the court can enforce the support terms of your agreement by ordering you and your partner to follow it
  • a government agency, called the Family Responsibility Office (FRO) can enforce support payments

The FRO is a government agency that collects support from the person who has to pay support, keeps a record of the amounts paid, and pays that amount to the person who has to get support.

If your partner misses payments, the FRO can take action to enforce the agreement and make them pay. For example, the FRO can take money from their bank account, suspend their driver's licence, or start a court case that can put them in jail.

Some people choose not to involve the FRO. It takes time for them to process the paper work and start enforcing payments. Or, if you and your partner get along well and you don't expect problems, you may not need the FRO's help.

To get the FRO to enforce your agreement:

Reviewed: 
September, 2016
Learn more about this topic
CLEO (Community Legal Education Ontario/Éducation juridique communautaire Ontario)
Ontario Ministry of Community and Social Services
Legal Aid Ontario - Aide juridique Ontario

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