O. Reg. 190/15: ADMINISTRATIVE CALCULATION AND RECALCULATION OF CHILD SUPPORT

Link to law: http://www.ontario.ca/laws/regulation/r15190
Published: 2015-07-08

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ontario regulation 190/15

made under the

Family Law Act

Made: April 22, 2015
Filed: July 8, 2015
Published on e-Laws: July 8, 2015
Printed in The Ontario Gazette: July 25, 2015


Administrative calculation and recalculation of child support

CONTENTS


Interpretation




1.


Definitions




Calculation




2.


Additional requirements for calculation




3.


Special or extraordinary expenses




4.


Application for calculation




5.


Response by other parent




6.


Subsequent failure to meet requirements




7.


Discretion to not calculate




8.


Notice of rejection




9.


Application of child support guidelines




10.


Prospective calculation




Recalculation




11.


Interpretation, “child support amount”




12.


Ineligible




13.


Special or extraordinary expenses




14.


Application for recalculation




15.


Response by other party




16.


Subsequent ineligibility




17.


Recalculation if no or incomplete response




18.


Requirement to not recalculate




19.


Discretion to not recalculate




20.


Notice of rejection




21.


Application of child support guidelines




22.


Prospective recalculation




General




23.


Fee waiver




24.


When notice given




25.


Corrections




26.


Transition




27.


Commencement




Interpretation

Definitions

1. In this Regulation,

“eligible special expenses” means the expenses for which subsection 3 (1) or 13 (2), as the case may be, provides that amounts may be calculated; (“dépenses spéciales admissibles”)

“special or extraordinary expenses” means special or extraordinary expenses within the meaning of section 7 of the child support guidelines. (“dépenses spéciales ou extraordinaires”)

Calculation

Additional requirements for calculation

2. The following requirements are prescribed for the purposes of paragraph 4 of subsection 39 (3) of the Act:

1. The parents of the child reside in Ontario.

2. The child is younger than 17 years and six months of age, is unmarried and has not withdrawn from parental control.

3. None of the following applies with respect to the income of the parent who would be the payor under the notice of calculation being sought:

i. The parent earns more than 20 per cent of his or her annual income from self-employment, or reported a self-employment income loss in the most recent taxation year.

ii. The parent earns more than 20 per cent of his or her annual income from a rental property.

iii. The parent’s income includes income from a corporation of which the parent is a director, officer or majority shareholder, or from a partnership of which the parent is a partner.

iv. The parent has an annual income of more than $150,000.

v. The parent has an annual income of less than the income amount for which child support is payable under the applicable table of the child support guidelines.

vi. The parent earns more than 20 per cent of his or her annual income from seasonal employment, if,

A. he or she did not file an income tax return for the most recent taxation year, or

B. his or her most recent income tax return shows an income that is significantly different from his or her current income.

4. None of the following applies with respect to the custody of the child:

i. Custody of the child is split, as described in section 8 of the child support guidelines.

ii. Custody of the child is shared, as described in section 9 of the child support guidelines.

5. No notice of calculation applies in respect of the child.

Special or extraordinary expenses

3. (1) The child support calculation service may calculate amounts to cover expenses referred to in clauses 7 (1) (a), (b) and (c) of the child support guidelines in accordance with subsection 9 (2) of this Regulation, but amounts for expenses referred to in clauses 7 (1) (d), (e) and (f) of the child support guidelines are excluded from calculation.

(2) Only the applicant for a calculation may request amounts for eligible special expenses.

Application for calculation

4. (1) In order to apply for a calculation of child support under section 39 of the Act, the applicant shall,

(a) complete an application for a notice of calculation of child support, in the form provided by the child support calculation service and available on the service’s website, and submit it to the service through that website;

(b) sign and mail to the child support calculation service his or her written consent, in the form provided by the service and available on the service’s website, for the service to obtain his or her income information directly from the Canada Revenue Agency, so that the consent is received by the service no later than 15 days after the day the application is submitted, subject to subsections (4) and (5); and

(c) pay a fee of $80, subject to section 23.

(2) The application referred to in clause (1) (a) shall include the following information:

1. The applicant’s name, date of birth and contact information.

2. The responding parent’s name and contact information.

3. The child’s name and date of birth.

4. If the applicant would be the payor under the notice of calculation being sought, the name and contact information of his or her employer and of a person who may be contacted in relation to payroll matters for the employer.

5. If the applicant would be the payor under the notice of calculation being sought or is requesting an amount for eligible special expenses, the applicant’s social insurance number or temporary taxation number.

6. If the applicant is receiving a universal child care benefit, the amount of the benefit paid to the applicant in the most recent taxation year.

7. The amount of any spousal support paid to the applicant by the responding parent or vice versa in the most recent taxation year.

8. If the applicant is requesting an amount for eligible special expenses, for each expense,

i. the type of expense, with reference to clause 7 (1) (a), (b) or (c) of the child support guidelines, as applicable,

ii. an estimate of the anticipated annual amount of the expense, taking into account any subsidies, benefits or income tax deductions or credits relating to the expense, and

iii. the name of the child to whom the expense relates.

9. Confirmation that the requirements of subsection 39 (3) of the Act are met, to the best of the applicant’s knowledge.

(3) An application may specify only one responding parent.

(4) Clause (1) (b) applies only if the applicant,

(a) would be the payor under the notice of calculation being sought; or

(b) is requesting an amount for eligible special expenses.

(5) If the applicant did not file an income tax return for the most recent taxation year, or if the applicant’s most recent income tax return shows an income that is significantly different from his or her current income, the applicant shall, instead of providing the consent referred to in clause (1) (b), submit with the application copies of the following documents, as applicable:

1. If the applicant is employed, the most recent statement of earnings showing the total earnings paid in the year to date, including overtime, or, if such a statement is not provided by the employer, the applicant’s three most recent pay stubs.

2. If the applicant receives income from employment insurance, social assistance, a pension, workers compensation or disability payments, the most recent statement of income indicating the total amount of income from the applicable source during the current year.

Response by other parent

5. (1) If the applicant meets the requirements of section 4, the child support calculation service shall notify the responding parent.

(2) The child support calculation service shall reject the application unless, no later than 25 days after the day the service mails its notification,

(a) the responding parent submits through the child support calculation service’s website,

(i) his or her consent to a calculation of child support by the child support calculation service, including any amount specified by the applicant for eligible special expenses,

(ii) the additional information listed in subsection (3), and

(iii) confirmation, to the best of his or her knowledge, that the requirements of subsection 39 (3) of the Act are met, and that the information provided by the applicant in the application is accurate;

(b) the child support calculation service receives by mail from the responding parent his or her written and signed consent, in the form provided by the service and available on the service’s website, for the service to obtain his or her income information directly from the Canada Revenue Agency, subject to subsections (4) and (5); and

(c) the responding parent pays a fee of $80, subject to section 23.

(3) The following additional information is required to be provided by the responding parent:

1. The responding parent’s date of birth.

2. If the responding parent would be the payor under the notice of calculation being sought, the name and contact information of his or her employer and of a person who may be contacted in relation to payroll matters for the employer.

3. If the responding parent would be the payor under the notice of calculation being sought or if the applicant is requesting an amount for eligible special expenses, the responding parent’s social insurance number or temporary taxation number.

4. If the responding parent is receiving a universal child care benefit, the amount of the benefit paid to the responding parent in the most recent taxation year.

(4) Clause (2) (b) applies only if,

(a) the responding parent would be the payor under the notice of calculation being sought; or

(b) the applicant is requesting an amount for eligible special expenses.

(5) If the responding parent did not file an income tax return for the most recent taxation year, or if the responding parent’s most recent income tax return shows an income that is significantly different from his or her current income, the responding parent shall, instead of providing the consent referred to in clause (2) (b), submit with his or her response to the application copies of the following documents, as applicable:

1. If the responding parent is employed, the most recent statement of earnings showing the total earnings paid in the year to date, including overtime, or, if such a statement is not provided by the employer, the responding parent’s three most recent pay stubs.

2. If the responding parent receives income from employment insurance, social assistance, a pension, workers compensation or disability payments, the most recent statement of income indicating the total amount of income from the applicable source during the current year.

(6) Despite subsection (2), the child support calculation service may extend the deadline if, in the service’s opinion, the requirements of that subsection are likely to be met within a reasonable period of time after the deadline.

Subsequent failure to meet requirements

6. If, after the application is submitted and before it is determined, the applicant or the responding parent becomes aware that any of the requirements of subsection 39 (3) of the Act are no longer being met, that person shall immediately notify the child support calculation service.

Discretion to not calculate

7. The child support calculation service may reject an application if, on review of the information provided by the applicant or the responding parent, it determines that calculation may be impracticable or too complex for the service to undertake.

Notice of rejection

8. The child support calculation service shall notify the applicant and the responding parent if an application is rejected, and shall specify the reason for the rejection.

Application of child support guidelines

9. (1) The child support calculation service shall determine the amount payable for child support in accordance with subsection 3 (1) of the child support guidelines, subject to the modifications set out in this section.

(2) For the purposes of determining amounts to cover eligible special expenses under section 7 of the child support guidelines,

(a) the amount of an expense is the amount agreed to by the applicant and the responding parent; and

(b) the means of the child shall not be considered by the child support calculation service, and no amount shall be deducted from the agreed to amount to account for any contribution from the child.

(3) A parent’s annual income for the purposes of calculating an amount payable for child support, excluding any amount for eligible special expenses, is the income amount determined in accordance with subsection (5), less the deductions referred to in section 3 of Schedule III to the child support guidelines.

(4) A parent’s annual income for the purposes of calculating an amount for eligible special expenses is the income amount determined in accordance with subsection (5), except that if that income amount does not reflect spousal support paid to or received from the other parent in the most recent taxation year, if applicable, the income amount shall be adjusted in accordance with the following:

1. If the parent paid spousal support to the other parent in the most recent taxation year, that amount shall be deducted from the parent’s income amount.

2. If the parent received spousal support from the other parent in the most recent taxation year, that amount shall be added to the parent’s income amount. 

(5) For the purposes of subsections (3) and (4), a parent’s income amount shall be determined in accordance with the following:

1. If the parent’s income information is being provided by the Canada Revenue Agency, the parent’s income amount is his or her annual total income for the most recent taxation year, as indicated in line 150 of his or her income tax return for that year.

2. If the parent’s income information is being provided by a statement of earnings or a statement of income, the parent’s income amount is his or her annualized gross income for the current year based on the gross income he or she has earned in the year to date, as indicated in the statement.

3. If the parent’s income information is being provided by pay stubs, the parent’s income amount is his or her annualized gross income for the current year based on the gross income he or she has earned in the last three pay periods, as indicated by the pay stubs.

4. If the parent indicates that he or she is not receiving income from any source, the parent’s income amount is $0.

Prospective calculation

10. Amounts calculated by the child support calculation service are payable on a prospective basis only, and no consideration shall be given to any amount that either parent may claim is owing for the support of the child at the time of calculation.

Recalculation

Interpretation, “child support amount”

11. For the purposes of sections 12 to 22, reference to a child support amount means the amount payable for the support of one or more children under an order, domestic contract or notice of calculation.

Ineligible

12. (1) A child support amount is ineligible for recalculation under section 39.1 of the Act in any of the following circumstances:

1. Fewer than six months have passed since the child support amount was established or changed.

2. The child support amount was determined on a basis other than the applicable table of the child support guidelines, plus any amount determined under section 7 of the child support guidelines.

3. Income on which the child support amount was based was determined on the basis of any of sections 17 to 20 of the child support guidelines, or on a basis other than the child support guidelines.

4. The child support amount contains an amount for post-secondary education expenses under clause 7 (1) (e) of the child support guidelines.

5. In the case of a child support amount payable under an order, the order was made in a jurisdiction other than Ontario.

6. The requirements for the calculation of child support set out in section 2, other than the requirement in subparagraph 3 v and paragraph 5 of that section, are not met.

(2) For the purposes of paragraph 6 of subsection (1),

(a) a reference in a provision referred to in that paragraph to a parent shall be read as a reference to a party to the order, domestic contract or notice of calculation containing the child support amount that is the subject of the recalculation; and

(b) if the child support amount is for more than one child, the requirements in paragraphs 2 and 4 of section 2 must be met with respect to all of the children.

Special or extraordinary expenses

13. (1) Amounts that are included in the child support amount for special or extraordinary expenses, other than the post-secondary education expenses referred to in clause 7 (1) (e) of the child support guidelines, may be recalculated by the child support recalculation service.

(2) The child support recalculation service may, as part of the recalculation of the child support amount, calculate new amounts to cover expenses referred to in clauses 7 (1) (a), (b) and (c) of the child support guidelines in accordance with subsection 21 (2) of this Regulation, but amounts for expenses referred to in clauses 7 (1) (d), (e) and (f) of the child support guidelines are excluded from calculation.

(3) Only the applicant for a recalculation may request,

(a) new amounts for eligible special expenses; and

(b) changes to amounts included in the child support amount for special or extraordinary expenses, if those expenses have changed or are no longer required to be paid.

Application for recalculation

14. (1) In order to apply for recalculation of a child support amount under section 39.1 of the Act, the applicant shall,

(a) complete an application for a notice of recalculation of child support, in the form provided by the child support recalculation service and available on the service’s website, and submit it to the service through that website;

(b) sign and mail to the child support recalculation service his or her written consent, in the form provided by the service and available on the service’s website, for the service to obtain his or her income information directly from the Canada Revenue Agency, so that the consent is received by the service no later than 15 days after the day the application is submitted, subject to subsections (4) and (5); and

(c) pay a fee of $80, subject to section 23.

(2) The application referred to in clause (1) (a) shall include the following information:

1. The information listed in paragraphs 1 to 7 of subsection 4 (2), with necessary modifications.

2. The current child support amount.

3. Information respecting the order, domestic contract or notice of calculation containing the child support amount that is the subject of the recalculation, such as when it was made, issued or took effect, and, in the case of an order or domestic contract, a copy of it.

4. Any case number assigned by the Director of the Family Responsibility Office to the order, domestic contract or notice of calculation.

5. If special or extraordinary expenses are included in the child support amount, a listing of the expenses that includes identification of any expenses,

i. that have changed, and setting out an estimate of the anticipated annual amount of the expense, taking into account any subsidies, benefits or income tax deductions or credits relating to the expense, or

ii. that are no longer required to be paid.

6. If the applicant is requesting a new amount for eligible special expenses, for each expense, the information listed in paragraph 8 of subsection 4 (2).

7. Confirmation that the child support amount is eligible for recalculation, to the best of the applicant’s knowledge.

(3) The following restrictions apply with respect to the application:

1. The applicant may specify only one responding party.

2. The applicant may not request that child support be calculated for a child who is not included under the child support amount that is the subject of the recalculation.

3. The applicant may not request that a child support amount be recalculated in a way that would reduce the number of children included under the child support amount.

(4) Clause (1) (b) applies only if,

(a) the applicant is the payor of the child support amount; or

(b) special or extraordinary expenses are included in the child support amount or the applicant is requesting a new amount for eligible special expenses.

(5) If the applicant did not file an income tax return for the most recent taxation year, or if the applicant’s most recent income tax return shows an income that is significantly different from his or her current income, the applicant shall, instead of providing the consent referred to in clause (1) (b), submit with the application copies of the applicable documents referred to in subsection 4 (5).

(6) The requirement to provide a consent under clause (1) (b) is met if,

(a) the applicant previously provided a consent under that clause in relation to the child support amount that is the subject of the recalculation, and has not withdrawn it; or

(b) the applicant provided a consent under clause 4 (1) (b) or 5 (2) (b) in relation to the calculation of a child support amount for the child or children in respect of whom the child support amount that is the subject of the recalculation is payable, and has not withdrawn it.

(7) Subject to the requirements set out in section 39.1 of the Act and in this section,

(a) there is no limit to the number of times a party may apply for the recalculation of a child support amount; and

(b) applications for the recalculation of a child support amount may be made at regular intervals.

Response by other party

15. (1) If the applicant meets the requirements of section 14, the child support recalculation service shall notify the responding party.

(2) The responding party shall, no later than 25 days after the day the child support recalculation service mails its notification,

(a) submit through the child support recalculation service’s website,

(i) his or her consent to a recalculation of the child support amount by the child support recalculation service, including any amount specified by the applicant for special or extraordinary expenses, if any of the circumstances listed in subsection (3) apply,

(ii) the additional information listed in subsection 5 (3), with necessary modifications, and

(iii) confirmation, to the best of his or her knowledge, that the child support amount is eligible for recalculation, and that the information provided by the applicant in the application is accurate;

(b) sign and mail to the child support recalculation service his or her written consent, in the form provided by the service and available on the service’s website, for the service to obtain his or her income information directly from the Canada Revenue Agency, so that the consent is received by the service before the 25-day deadline, subject to subsections (4), (5) and (6); and

(c) pay a fee of $80, subject to section 23.

(3) The following are the circumstances referred to in subclause (2) (a) (i):

1. The applicant is requesting a new amount for eligible special expenses or changes to an existing amount for special or extraordinary expenses that have changed or are no longer required to be paid.

2. The child support amount is currently the subject of a court proceeding.

3. The child support amount is payable under a domestic contract.

4. The applicant is the payor of the child support amount and indicates in the application that he or she is not receiving income from any source.

(4) Clause (2) (b) applies only if,

(a) the responding party is the payor of the child support amount; or

(b) special or extraordinary expenses are included in the child support amount or the applicant is requesting a new amount for eligible special expenses.

(5) The requirement to provide a consent under clause (2) (b) is met if,

(a) the responding party previously provided a consent under that clause in relation to the child support amount that is the subject of the recalculation, and has not withdrawn it; or

(b) the responding party provided a consent under clause 4 (1) (b) or 5 (2) (b) in relation to the calculation of a child support amount for the child or children in respect of whom the child support amount that is the subject of the recalculation is payable, and has not withdrawn it.

(6) If the responding party did not file an income tax return for the most recent taxation year, or if the responding party’s most recent income tax return shows an income that is significantly different from his or her current income, the responding party shall, instead of providing the consent referred to in clause (2) (b) or relying on a consent described in subsection (5), submit with his or her response to the application copies of the applicable documents referred to in subsection 5 (5).

(7) Despite subsection (2), the child support recalculation service may extend the deadline if, in the service’s opinion, the requirements of that subsection are likely to be met within a reasonable period of time after the deadline.

Subsequent ineligibility

16. If, after the application is submitted and before it is determined, the applicant or the responding party becomes aware that the child support amount is no longer eligible for recalculation, that person shall immediately notify the child support recalculation service.

Recalculation if no or incomplete response

17. Subject to section 18, the child support recalculation service may proceed with the recalculation of a child support amount despite the failure of a responding party to respond to an application in accordance with section 15.

Requirement to not recalculate

18. The child support recalculation service shall reject an application if,

(a) consent of the responding party is required under subclause 15 (2) (a) (i) and the responding party does not provide his or her consent;

(b) the responding party indicates that the child support amount is not eligible for recalculation or that information provided by the applicant in the application is not accurate;

(c) the responding party is the payor of the child support amount and indicates in his or her response to the application that he or she is not receiving income from any source;

(d) the service is not able under subsection 21 (5) or (6) to determine an income amount for the responding party; or

(e) the service has reason to believe that the responding party did not receive the notice provided under subsection 15 (1).

Discretion to not recalculate

19. The child support recalculation service may reject an application if, on review of the information provided by the applicant or the responding party, it determines that recalculation may be impracticable or too complex for the service to undertake.

Notice of rejection

20. The child support recalculation service shall notify the applicant and the responding party if an application is rejected, and shall specify the reason for the rejection.

Application of child support guidelines

21. (1) The child support recalculation service shall recalculate the child support amount in accordance with subsection 3 (1) of the child support guidelines, subject to the modifications set out in this section.

(2) For the purposes of determining amounts to cover special or extraordinary expenses under section 7 of the child support guidelines,

(a) if the amount of an expense has changed or the amount is for a new eligible special expense, the amount of the expense is the amount agreed to by the applicant and the responding party; and

(b) the means of the child shall not be considered by the child support recalculation service, and no amount shall be deducted from the agreed to amount to account for any contribution from the child.

(3) A party’s annual income for the purposes of recalculating an amount payable for child support, excluding any amount for special or extraordinary expenses, is the income amount determined in accordance with subsection (5) or (6), subject to subsection (7), less the deductions referred to in section 3 of Schedule III to the child support guidelines.

(4) A party’s annual income for the purposes of recalculating an amount for special or extraordinary expenses, including calculating a new amount for eligible special expenses, is the income amount determined in accordance with subsection (5) or (6), except that if that income amount does not reflect spousal support paid to or received from the other parent in the most recent taxation year, if applicable, the income amount shall be adjusted in accordance with the following:

1. If the party paid spousal support to the other party in the most recent taxation year, that amount shall be deducted from the party’s income amount.

2. If the party received spousal support from the other party in the most recent taxation year, that amount shall be added to the party’s income amount.

(5) For the purposes of subsections (3) and (4), a party’s income amount shall be determined in accordance with the following, subject to subsection (6):

1. If the party’s income information is being provided by the Canada Revenue Agency, the party’s income amount is his or her annual total income for the most recent taxation year, as indicated in line 150 of his or her income tax return for that year.

2. If the party’s income information is being provided by a statement of earnings or a statement of income, the party’s income amount is his or her annualized gross income for the current year based on the gross income he or she has earned in the year to date, as indicated in the statement.

3. If the party’s income information is being provided by pay stubs, the party’s income amount is his or her annualized gross income for the current year based on the gross income he or she has earned in the last three pay periods, as indicated by the pay stubs.

4. If the party indicates that he or she is not receiving income from any source, the party’s income amount is $0.

(6) If the child support recalculation service proceeds with a recalculation in the circumstances described in section 17, and income information is not available for the responding party, the responding party’s income amount is deemed, for the purposes of the recalculation, to be his or her income as set out in the order, domestic contract or notice of calculation containing the child support amount that is the subject of the recalculation, increased by the following percentage:

1. If fewer than two years have passed since the child support amount was established or last changed, 10 per cent.

2. If at least two but fewer than five years have passed since the child support amount was established or last changed, 15 per cent.

3. If at least five but fewer than 10 years have passed since the child support amount was established or last changed, 20 per cent.

4. If 10 or more years have passed since the child support amount was established or last changed, 30 per cent.

(7) Subsection (6) does not apply if the child support amount is payable under an order made under the Divorce Act (Canada), unless a court has authorized the child support recalculation service to deem income.

Prospective recalculation

22. Amounts recalculated by the child support recalculation service are payable on a prospective basis only, and no consideration shall be given to any amount that may be owing to any party for the support of the child at the time of the recalculation.

General

Fee waiver

23. A fee payable under this Regulation shall be waived if the person required to pay the fee indicates when making or responding to an application that he or she meets the conditions set out in section 2 of Ontario Regulation 2/05 (Fee Waiver) made under the Administration of Justice Act.

When notice given

24. The day on which notice of a calculation or notice of a recalculation is considered to have been given is the fifth day after it is mailed by the service.

Corrections

25. (1) If a notice of calculation or a notice of recalculation contains an error, any parent or party affected by the error may notify the service of the error and request that it be corrected, subject to subsection (2).

(2) If the error is with respect to the amount payable under the notice or to whom, subsection (1) does not apply unless the parent or party notifies the service no later than 15 days after the day the notice was given.

(3) A notice containing an error with respect to a matter other than either the amount payable under the notice or to whom, continues to have effect despite the error.

Transition

26. The provisions of this Regulation relating to the recalculation of a child support amount payable under an order apply in respect of orders made under the Divorce Act (Canada) only on and after the day an agreement described in subsection 25.1 (1) of that Act, if entered into by the Government of Canada and the Government of Ontario, takes effect.

Commencement

27. This Regulation comes into force on the later of the day subsection 10 (1) of Schedule 9 to the Building Opportunity and Securing Our Future Act (Budget Measures), 2014 comes into force and the day this Regulation is filed.

 

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