MOTIONS TO CHANGE SUPPORT PAYMENTS AND ARREARS-PROCEDURE
In Ontario , the Family Law Rules dictate the procedure to be followed in order to initiate a Court proceeding to change a final order or Separation Agreement for monthly child support payments, section 7 or special expenses or accumulated arrears. Each Court office has its own directives and procedures to be followed under these Rules. All parties are strongly encouraged to seek legal advice regarding their rights and obligations and the specific procedure to be followed in an individual case.
The following information should be assembled and organized by anyone seeking to initiate a motion to change. If you are represented by a lawyer or intend to be represented by a lawyer additional information specific to your case will no doubt be required. However, providing this information in an organized format will assist your lawyer greatly.
- A copy of the existing separation agreement or support order and all prior orders wherein arrears have accumulated;
- Copies of all Income Tax Returns, including all T4 slips and attachments and Notices of Assessment or Reassessment for each and every year since the arrears began to accumulate up to and including the most recent tax year;
- If there are arrears and the order is filed with FRO, an up to date Director’s Statement of Arrears. A form to request same from the FRO can be found on the FRO website at www.thefro.ca ;
- A properly completed Financial Statement Form 13 found at the following link: http://www.ontariocourtforms.on.ca/english/family/ ;
- A copy of the Support Information Exchange ( SIX ) Ledger, www.yoursix.ca
- A current address for the support recipient;
- A copy of your pay stub showing year to date income and deductions and your three most recent pay stubs. If you do not receive a pay stub with this information contained therein, a letter from your employer detailing this information is required;
- In the event that your case is based on income reduction or job loss, a chronology of your employment history from the time the most recent order was made, including copies of any Records of Employment (ROE) or severance documentation. If your income reduction occurred as a result of health factors, a medical report or other evidentiary confirmation of your condition is recommended.
- A copy of your retraining program , if applicable;
- A copy of severence documents showing the amount received and when it was paid, if applicable;
- A copy of your resume
- Proof of your job search.
- The returned Confirmation of Assignment Search;
Financial Disclosure Requirements for Self-Employed Payors
Payors whose income does not arise from T4 employment earnings should not expect to obtain a change in guideline child support based on Line 150 Income as set out in the Notice of Assessment from CRA. The Notice of Assessment is only a starting point . The past three year Notices of Assessment will be sufficient to issue the Motion to Change in Court but it will not be sufficient to complete the proceeding. Significant additional documentary disclosure will be required in order to have any meaningful assessment of the request to change the payments under the Child Support Guidelines. This additional disclosure will be required at a Dispute Resolution Conference ( DRO ), Case Conference or at a Court Motion. Payors should therefore organize this disclosure as soon as a motion to change is being considered in order to be in the best position to achieve an early and cost-efficient resolution.
By way of example, the Superior Court of Justice Family Brance in Newmarket, Ontario has recently introduced the following disclosure requirements. It is not unrealistic to expect that similar disclosure requirements will be required in all courts in the not too distant future.
STANDARD DISCLOSURE TERMS – SUPPORT CASES
1. Financial statement, in Form 13 or 13.1 as required by the Family Law Rules, if the latest one is more than 30 day sole. If there have been only minor changes to the information in the party’s latest financial statement, an affidavit updating is sufficient
2. A copy of every personal income tax return, with all schedules, attachments and information slips, filed by the party with Canada Revenue Agency for three most recent taxation years.
3. A copy of every notice of assessment or re-assessment received from Canada Revenue Agency for the three most recent taxation years.
4. A copy of all income slips (T4s, T4As, T5s, etc) received for any of the three most recent taxation years for which a tax return has not been filed.
5. Proof of any payments of support made directly to, or for the benefit of, the support recipient or a child (not through Family Responsibility Office) for the last 12 months and the years ________.
6. A copy of any application made by or for the party within the last three years for a loan, line of credit, credit card, or mortgage, including any statement of income or net worth provided by or for the party.
7. A copy of the most recent paystub or statement with year to date income for the current calendar year.
8. A copy of all benefit information circulars or benefit booklets outlining all employee benefits for health care, dental care, prescriptions and life insurance. If no circular or booklet is available, a detailed statement from the employer or the group plan insurer outlining these benefits.
SELF EMPLOYED PARTY (Sole Proprietor)
9. Year end financial statements for all businesses, including income and expense statements and list of assets, liabilities and debts.
10. The most recent monthly or quarterly income and expenses statement for all businesses.
11. A statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, the party and persons or corporations with whom the party does not deal at arm’s length.
12. A copy of any application made by or for the business for a loan, line of credit, credit card or mortgage, including any statement of income or net worth provided by or for the business.
PARTY WHO IS A PARTNER IN A PARTNERSHIP
13. Year end financial statements for all businesses, including income and expense statements and a list of assets, liabilities and debts,
14. The most recent monthly or quarterly income and expense statement for all businesses.
15. A statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the partnership does not deal at arm’s length.
16. A copy of the partnership agreement.
17. Confirmation of the party’s income and draw from, and capital in, the partnership for the current year.
18. A copy of any application made by or for the partnership for a loan, line of credit, credit card or mortgage, including any statement of income or net worth provided by or for the partnership.
PARTY WHO CONTROLS A CORPORATION OR MORE THAN 10% OF THE VOTING SHARES
19. A copy of every corporation tax return, with all schedules, attachments and information slips, filed by the corporation with Canada Revenue Agency.
20. A detailed statement of all personal expenses paid by the corporation.
21. The year-end financial statements, including balance sheet and income statement or statement of profit and loss, of the corporation and of any related corporations or subsidiaries.
22. A copy of the shareholder’s agreement.
PARTY WHO IS A BENEFICIARY OR SETTLOR OF A TRUST
23. A copy of the trust’s financial statements, including statement of income and expense and statement of distributions.
24. A copy of all income slips (T4s, T4As, T5s, etc) received from the trust and, if the party is the settler, all T5s or other tax information slips issued by the trust.
25. A copy of the documents which establish the trust.
PARTY WHO RECEIVES INCOME FROM ANY OTHER SOURCE
26. A letter from each income source setting out the party’s total annual income and how the party’s income is calculated.
PARTY WHO HAS BEEN BANKRUPT OR HAS MADE A PROPOSAL TO CREDITORS WITHIN THE LAST FIVE YEARS
27. Proof of bankruptcy, including copy of assignment in bankruptcy or petition into bankruptcy, statement of affairs, and any discharge.
28. A copy of any bankruptcy proposal signed by the party and the trustee under the Bankruptcy and Insolvency Act.
29. A copy of the projected cash flow statement of the party, signed by the party and filed by the trustee along with the final proposal.
30. A copy of the trustee’s cash flow statement, the trustee’s report on reasonableness of cash flow statement and the trustee’s report containing prescribed representations of the insolvent party regarding the preparation of the cash flow statement.
PARTY WHO IS NOT WORKING
31. The party’s personal resume, a list of all places or persons to whom the party has applied for employment in the last 12 months, with dates, and a copy of all responses received.
32. Medical documentation verifying any inability to work due to illness or disability.
33. A copy of any documentation for illness or disability benefits submitted to the Canada Pension Plan, the Ontario Disability Support Program, or any illness or disability insurer and the response to each application.
Information, forms and guides regarding Motion to Change procedures and the Family Justice System in Ontario is provided at : http://www.attorneygeneral.jus.gov.on.ca/english/family/divorce/support/default.asp. Sample motion to change forms and procedures prepared by Mr. Marra are available to members of the Support Information Exchange ( SIX ) www.yoursix.ca