CHILD SUPPORT AND SPOUSAL SUPPORT

If your child has moved out and lives on their own or with another person, and they are able to support themselves financially, then child support may not be owed for that child any more. This will depend on your situation, but if a child is no longer a dependent, then a court can determine that child support is no longer owed. However, you must apply to court to change child support payments. If you stop paying child support without an agreement or court order, then you may still owe the money up until the time a new agreement or court order is made. See the follow sections for more information on how to change child support.

The Child Support Guidelines are based on the previous year, not the current year. If the other parent is not working now, they will still have to pay the amount of child support you both previously agreed upon, or the amount ordered by a court. This is done to prevent people from stopping work and therefore impacting the well-being of a child. However, if you and the other parent agree, or if a court orders so, the amount of child support can change to reflect the new financial circumstances of the paying parent. This may be temporary or indefinite depending on the circumstances.

No one is automatically entitled to either spousal or partner support. Whether or not you are entitled to support will depend on your circumstances. There are two means to allow for entitlement of spousal support: (1) compensatory support, and (2) non-compensatory support.

Compensatory support considers that one spouse should be compensated for helping the other advance their career by taking care of the family.

Non-compensatory support considers the needs of one party in a relationship and the ability of the other party to pay to help support those needs.

Both types of support are considered with the following factors to determine if someone is entitled to spousal support. These include:

•   The financial means (abilities), needs, and circumstances of both spouses;
•   The length of time the spouses have lived together;
•   The roles of each spouse during their marriage;
•   The effect of those roles and the breakdown of the relationship on both spouses’ current financial positions;
•   The ongoing responsibilities for care of the children, if any; and
•   Any previous orders, agreements or arrangements already made about spousal support.

These factors must be looked at with a broad perspective to best understand whether someone is entitled to spousal support. For example, a spouse who stayed home to raise children, or a spouse who stayed home to take care of the home, prepare meals, and keep the house in good order, may be entitled to spousal support. This is because the law recognizes that there is value in work done in the home without pay. If you are concerned about whether or not you are entitled to spousal support, you should consult with a lawyer.

Because spousal support varies from case to case it is difficult to determine how much someone can receive. The paying spouse must make a minimum of $20,000.00 to be expected to be able to pay spousal support, but there is no limit to how much they will have to pay if their income is over the minimum. As well, it will depend on whether child support will be paid to your spouse. Sometimes people agree to a specific amount that will work for them given their situation. In other cases, a court must decide first if a spouse is entitled, and if so, how much they are entitled to. There are numerous factors that can influence how much one spouse may have to pay to another. These include, but are not limited to:

•   Debts (loans, mortgages, etc.), if any, owed by the paying spouse;
•   If the paying spouse must also pay child support;
•   Available tax benefits to both parties (child income tax credits, disability benefits, etc.);
•   If the paying spouse must pay union dues; and
•   The income of the spouse receiving the payment.

The duration of support payments will depend on whether parties have agreed to a specific time, or if a court must determine an amount of time. Some parties choose to pay a one-time lump sum payment for spousal support, while others choose to spread out support over the course of months or years. Spousal support will largely depend on the length of the relationship. As well, if parties were married, time spent together to try to resume the marriage will be included in this length of time for calculating how long spousal support should be paid. Finally, if the person receiving spousal support is 65 years or older, or if they support a disabled child, then spousal support can be indefinite.

There is no limitation on when you can apply for spousal support if you were married. However, if you were not married, then you will only have so much time to apply for spousal support.

If you did not have a domestic contract that set out spousal support in your relationship (see definitions for more on domestic contracts), then you only have two years from the day you separate to apply for spousal support. If you were not married and had a domestic contract that set out spousal support in your relationship, then you will have two years from when your ex-spouse stopped paying you.

Yes, however, courts give preference to child support where parties have children together. This means that if you and your ex-spouse have children together, and child support is to be paid, then priority will be given to the needs of your child(ren). Any money that can be paid for spousal support must come from what remains after child support is paid. This is because courts understand the need to support children is greater than that of an adult.

Yes, however you must provide “effective notice” to the paying person. Effective notice is when the parent receiving child support indicates or tells the paying parent that the overdue child support should be paid. There is no guarantee that the full overdue amount will be ordered payable by a court.

If you have a court order for child or spousal support, it is automatically registered with the “Support Enforcement Program” (the SEP). If you made an agreement for support that was submitted to court it will also be automatically registered with the SEP. If someone refuses or fails to pay court ordered child or spousal support, the SEP can enforce a court order/registered agreement. The SEP has several powers to enforce court orders, including, but not limited to:

• Wage/Income, bank, pension, and other financial garnishments;
• Passport denial and revocation;
• Firearms license denial and revocation;
• Suspension and cancellation of big game hunting licenses;
• Driver’s license and other license suspensions and refusal of renewal;
• Seizure and auction of personal property (such as vehicles, and other assets); and
• Notice for court appearance with possible jail for continued non-payment of child or spousal support.

If you have an agreement for support that was not submitted to court, or not registered with the Support Enforcement Program, then you cannot use the Support Enforcement Program. If this is the case then you will have to file an “Originating Application” to seek a court order for child or spousal support. The “Originating Application” form can be found online here:

https://www.court.nl.ca/supreme/files/F4.03A-Originating-Application-2022-07.pdf

Yes, however this must be done in specific circumstances, such as where a child is no longer considered a dependent, and evidence of overpayment must be provided. Additionally, the return of child support must not place an undue hardship on the party who was overpaid.

If a person is looking to get or change a support order (for spousal support and/or child support) relating to a party who lives in another province or country, there are processes to follow.

The Interjurisdictional Support Orders Act (ISO) is a provincial law that helps with these processes. This law can be found online here: https://www.assembly.nl.ca/legislation/sr/statutes/i19-2.htm  

The Interjurisdictional Support Orders Act is used to obtain or vary an order for support or to request registration and enforcement of an order where one of the parties does not live in the same jurisdiction within Canada, the United States or any other reciprocating country. Reciprocating countries are countries that, similar to the United States, have agreed to use the same Interjurisdictional Support Orders Act. Under this law, Newfoundland and Labrador has agreements with many different places to recognize and honour each other’s support orders. If a person is seeking to apply to court for an Interjurisdictional Support Order then they are encouraged to seek legal advice.

For contact information for the Support Enforcement Program, please see age 83 of this guide.

This application process also does not apply if you want to change an order made under the Divorce Act. A support order made under the Divorce Act is valid and enforceable across Canada and will usually be enforceable under the Interjurisdictional Support Orders Act.

However, to change a support order made under the Divorce Act, when one spouse resides outside Newfoundland and Labrador, the spouse must be served with the application and the other spouse must also agree to have the Newfoundland and Labrador court decide the application.  Additionally, you could apply to have part of the hearing to be held in the province where one spouse lives and the rest where the other spouse lives.

If you have a court order or agreement registered with Support Enforcement for child/spousal support that you can’t afford to pay, you can get a stay of enforcement under section 14 of the Support Orders Enforcement Act. This will temporarily stop any legal actions against you for 3 months from the Support Enforcement Program. This can be extended to give you a maximum of 9 months of relief from legal action.