Honour Child Support before Applying for the Divorce

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  • October 1, 2015

You authorize your lawyer to obtain a divorce order by signing the Retainer Agreement. As you know, in Canada, there must be a one year wait from the date of separation to the date of the application to grant the court authority to grant a divorce order. The process to obtain the divorce order can be initiated earlier than the one year wait period has passed with risk if there are children entitled to receive child support. Child support is paid pursuant to the terms of a separation agreement or as a term in the divorce order.

While no separation agreement is required to obtain a divorce order, the divorce application documents require that you inform the court of the identity of each “child of the marriage” entitled to receive child support. You will also be required to identify where the children reside, the support amount payable pursuant to the Child Support Guidelines, and the actual amount being paid.

The Ontario Superior Court of Justice and the Ontario Superior Court of Justice, Family Court (depending on the jurisdiction) have the authority to grant divorce orders. The applicant will be required to provide the best evidence of child support being honoured. That evidence is the separation agreement signed by both spouses in the presence of a witness.

If since separation, no child support has been paid, it is in fact in arrears. That is sufficient for the judge to refuse to grant the divorce order.

There is no point to instruct your lawyer to draft the application for the divorce order early to have it rejected by the court clerk or by the judge due to it being premature or to support arrears. To avoid duplicate costs to revise certain sections of the divorce application, ensure that the separation agreement is signed and child support is being paid consistent with the terms of the agreement. The spouse may agree that the separation agreement will contain the child support provisions and not the divorce order. This makes it simpler and less expensive when you update the child support payable as the children mature.

Bottom line: Wait to ensure that the separation agreement is signed and child support is being honoured as specified in the agreement.

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