Support arrears often begin quietly. A job ends in the spring, a parent pays what they can through the summer, and by the winter there is a statement from the Family Responsibility Office showing a number that does not look real. It feels like a mistake, and sometimes part of it is. More often, it is what the order has been adding up to all along, one missed amount at a time.
The most important thing to know about arrears is that they generally keep growing until someone changes the order. Stopping payment does not stop the debt. Neither does an agreement over the phone, or the fact that a child has moved out. The sooner the number is examined and dealt with, the more options there tend to be, for both the person who owes the money and the person waiting for it.
This is general information about Ontario law, not legal advice about your case. Enforcement powers themselves, such as licence suspensions and garnishment, are a large subject of their own, so this article concentrates on what the debt is and what can be done about it.
How the debt gets counted
Arrears are the difference between what an order or filed agreement says should have been paid and what was actually paid. The calculation can include:
- the base amount of child or spousal support
- special or extraordinary expenses, if they are stated in the order as a payable amount
- cost-of-living adjustments, if the order has them
- court costs, in some cases
- interest and other charges, where they apply
The Family Responsibility Office (FRO) keeps the official account for cases filed with it. Its figure is not always correct. Payments made directly to the other parent, often in cash, may not appear unless both people report them, and FRO’s site says it charges $100 each time it has to adjust an account because a payor paid the recipient directly. Mistakes may also arise where a support amount was changed but the change was never filed, or when a child stopped qualifying but nobody told FRO.
If you think the number is wrong, start by getting a full statement of account and comparing it with your own records. Bank statements, e-transfer records and messages confirming payment are far better than memory. Then list every month where you disagree, and why.
Support does not stop on its own
Many arrears disputes come from a belief that support ended automatically. It does not, at least in Ontario’s enforcement system. Ontario law does not set an automatic end date. Support ends on a date or event set out in an order or contract, or when both people agree, or when a judge decides. Common examples of the problem:
- A child turned 18 or finished school, and the payor stopped paying without anything being filed.
- A child moved in with the payor, but the order was never changed.
- A spousal support recipient remarried or started working, and the payor assumed that was the end of it.
Any of these might be a very good reason to end support. It is still just a reason until it is put in the right form. FRO has a process to discontinue enforcement: the payor completes a form, FRO writes to the recipient, and what happens next depends on the response. If the recipient disputes it, enforcement continues, and the question will usually have to go before a court.
Who actually owns the debt
The arrears may not all be owed to the other parent. If the recipient received social assistance while support went unpaid, the order may have been assigned, in whole or in part, to a government agency. That has two consequences:
- The other parent may be unable to forgive that portion, even if they sincerely want to.
- The agency must be served with a motion to change. Under Rule 15 of the Family Law Rules, if an assignee is not served when it should be, the court can later set aside the change to the extent that it affects the agency’s financial interest.
Parents who reach a friendly deal to wipe out arrears are often surprised by this. If your order has ever been assigned, or if you are not sure, check before you rely on anyone’s promise. And an informal promise from the recipient is risky even without an assignment. For a change to bind FRO, it needs to be in a proper legal form, such as a consent motion to change.
Asking a court to reduce or cancel arrears
Only a court (or a properly filed process that changes the order) can alter what is owed. For a final order, that generally means a motion to change under Rule 15. In a case with a separate agreement, it can be a different kind of application. Because this usually means asking the court to reach back in time, the leading decision is Colucci v. Colucci, a 2021 ruling from the Supreme Court of Canada.
Mr. Colucci had an arrears debt of about $170,000, had not paid in years and did not communicate or seek a change for a very long time. The Court refused to reduce it. Its reasoning set out the framework that courts now use.
A drop in income is not an automatic pass. A payor who shows that income fell in the past is not automatically entitled to have support reduced to the date of the drop. The court has discretion, and it balances the child’s need for proper support with the flexibility needed when a payor’s ability to pay changes.
Notice matters. Generally, the starting point for a reduction is the date when the payor effectively told the recipient of the change and of their wish to pay less, along with documents to back it up. That starting point generally goes back no more than three years before formal notice was given. In other words, a person who sat on the problem for six years should not assume that the whole period can be reopened.
Disclosure is the foundation. The Court said that frank disclosure of income information by the payor lies at the foundation of the child support regime. Without solid evidence of actual income for the relevant years, the request may fail regardless of how sympathetic the story is.
Cancelling a debt is a last resort. Where a payor cannot show a change in income for the past but says they cannot pay what is owed, the Court treated rescission as something for exceptional cases. A payor must show that they cannot pay now and could not pay in the future, even with a flexible payment plan. The Court’s plain-language summary says that the payment and enforcement of a child support debt is the rule.
Spousal support arrears are decided on principles of their own, and the analysis may differ, for example about how much delay matters. Do not assume that the same answer applies to both.
What a successful request tends to include
The motion is won or lost on the record. Expect to need:
- a complete account of what was owed, what was paid and when
- income tax returns and notices of assessment for each year in question, filed if they have not been (and if you have not filed, deal with that first)
- proof of why income fell: layoff letters, medical records, business records, job search evidence
- a current financial statement showing your assets, debts and spending
- evidence of when and how you told the other parent, such as an email or a lawyer’s letter
- a realistic proposal about what you can pay, and on what schedule
If you still have the ability to tell the other parent in writing today that your income has changed, and to send them your documents, doing that may matter. Formal or informal notice can affect how far back a court can look. Then follow up promptly, since a court may look unkindly on a long gap.
Keeping arrears from growing while you sort this out
Bringing a motion does not put the order on hold. It continues to accumulate until a court changes it. Pay what you reasonably can, through FRO so that it is counted, and keep the records.
FRO offers a voluntary arrears payment schedule. You pay down the debt while you keep up with ongoing support, and you will need to complete a proposal form and a financial statement. If a payor does not engage, FRO generally tries to set up a plan first and takes enforcement steps if that fails. Such a plan does not reduce what you owe. It does give you some structure, and it is often the most realistic way to avoid escalating enforcement.
If you get a first notice about your driver’s licence, take it seriously. Section 35 of the Family Responsibility and Support Arrears Enforcement Act lets a payor who is changing the order, or who undertakes to do so, ask the court to order FRO to refrain from suspending a licence. The Act is also clear that payment terms in such an order do not stop arrears from accruing. So even a successful motion to refrain is a breathing space and not a solution.
Things that do not make arrears go away
Time. Ontario’s Limitations Act, 2002 says there is no limitation period for a proceeding to enforce a court order, or for enforcing support in an agreement that could be filed under the Family Law Act. A debt from many years ago can still be enforced.
Moving away. Ontario has reciprocal enforcement with other provinces, U.S. states and many countries. Moving may slow enforcement, but it does not end the obligation.
Bankruptcy. Support debts generally survive a bankruptcy. Under the federal Bankruptcy and Insolvency Act, debts for support and maintenance under an order or agreement are not released by discharge. Bankruptcy may free up other cash flow, which could help you to pay, but it will not clear these arrears. Speak with a licensed insolvency trustee as well as a family lawyer if you are considering it.
The child growing up. Arrears that built up while a child was dependent can still be owed after the child becomes an adult, although a court may take into account the circumstances when it decides what to do with them.
A parenting dispute. Being denied time with your child is a serious matter with remedies of its own. It is not a defence to non-payment, and courts generally expect the two issues to be kept apart.
If you are the one owed money
Recipients have decisions to make as well.
Keep your own running record, and send FRO a Statement of Arrears if the account is not accurate. Tell FRO what you know about the payor’s employer, property or new business. Respond to letters from FRO about stopping or lowering enforcement. If you do not respond, FRO may stop, or may enforce a lower amount. The same goes for a motion to change: if you are served, you generally have 30 days to respond if you live in Canada or the United States, and 60 days otherwise.
Consider also whether a negotiated resolution serves you better than a hard line. A recipient may decide that a lump sum now, or a realistic payment plan, is worth more than a larger number that will never be collected. If you do that, put it in a proper consent document, get advice first, and check whether any agency has an interest. Do not sign away arrears because of pressure.
Getting help early
Arrears are one of the areas of family law where delay carries the highest cost. Each month adds to the total, and a long silence may weaken a later request. You do not have to have everything organized before you get advice; a rough list of dates and a copy of the order are enough to begin. You can find general information on how orders are made and changed on our child and spousal support page, and you can contact our office if you want to talk through your numbers.