If an Ontario payer is sentenced to federal prison, their spousal support obligation does not pause automatically. They must formally file a Motion to Change at the Superior Court of Justice to reduce or suspend support due to a material change in circumstances, otherwise arrears will continually accrue.
Navigating a separation in Ontario is already stressful, but when the paying spouse is convicted of an indictable offence and sent to prison, the financial landscape changes drastically. Whether your former partner is from Toronto, Ottawa, or Kingston, a long-term incarceration means their employment income drops to virtually zero. However, many people mistakenly believe that going to jail automatically cancels their family court obligations. The reality is that court orders remain fully enforceable until a judge explicitly says otherwise.
The Family Responsibility Office (FRO) does not have the authority to forgive support arrears or change a monthly support amount just because someone is behind bars. 📍 The incarcerated individual must actively prove a “material change in circumstances” to have the payments adjusted. If they fail to act, the FRO will continue to tally the unpaid amounts, leading to severe financial consequences upon their release. Engaging a skilled family lawyer from our directory can help manage this complex process properly.
Step-by-Step Process in Ontario for Incarcerated Payers
Changing a support order requires formal legal steps. You cannot simply write a letter to the court or the FRO and expect the payments to stop. Here is the general process an incarcerated payer must follow through the Ontario Superior Court of Justice.
Step 1: Notify the Ex-Spouse and the FRO
The first step is communication. 📝 The payer (or their lawyer or power of attorney) should immediately inform the recipient spouse and the Family Responsibility Office about the incarceration. While this does not legally stop the payments, it provides notice that income has ceased and a formal court application is forthcoming. This transparency can sometimes lead to an out-of-court agreement to temporarily suspend payments.
Step 2: Gather Official Correctional Documentation
To prove that income has dropped, you need evidence. The payer must obtain official documentation from the Correctional Service of Canada (for federal sentences over two years) or the provincial correctional centre (for shorter summary conviction sentences). These documents must confirm the date of incarceration and the expected length of the sentence, proving the inability to earn a standard wage.
Step 3: File a Form 15 Motion to Change
Next, the formal court paperwork must be drafted. 📈 The payer must complete a Form 15 Motion to Change, along with a sworn Form 15A Change Information Form, and an updated Form 13 or 13.1 Financial Statement showing zero or minimal income. These documents are filed at the local Superior Court of Justice. The payer is asking the judge to apply the Spousal Support Advisory Guidelines (SSAG) to their new, drastically reduced income.
Step 4: Serve the Documents and Wait for a Response
Once filed, these legal documents must be formally served to the recipient spouse. The recipient has 30 days to respond. If the recipient agrees that the payer has no assets or income to pay support, they can sign a consent motion to temporarily suspend the support. If they disagree (for example, if the payer has large investments generating passive income despite being in jail), a judge will have to decide the outcome at a hearing.
Step 5: Obtain the New Court Order
Finally, a judge will issue a new court order. 💰 Usually, the court will suspend the support obligation for the duration of the incarceration and order a mandatory review upon the payer’s release. This updated court order must be immediately faxed or mailed to the FRO so they can adjust their enforcement actions and stop accumulating arrears.
How Much Does it Cost in Ontario?
Legal actions take resources, which is challenging when the payer has lost their income. Here is what it generally costs to process a Motion to Change in Ontario:
| Expense Type | Estimated Cost (CAD) |
|---|---|
| Court Filing Fees | $224 CAD for filing a Motion to Change (unless a fee waiver is obtained). |
| Lawyer Fees (Uncontested) | $1,500 – $3,000 for drafting and filing consent paperwork. |
| Lawyer Fees (Contested) | $3,500 – $7,000+ if a hearing is required because the ex-spouse objects. |
How Long Does the Process Take?
Court backlogs in Ontario can cause delays. If the recipient spouse consents to suspending the support, the paperwork can be processed by a judge “over the counter” in about 4 to 8 weeks. If the motion is contested and requires a case conference and a formal motion hearing, it can take anywhere from 4 to 9 months to get a final decision. Fortunately, judges often make the suspension retroactive to the date the payer was incarcerated.
Frequently Asked Questions (FAQ)
Does FRO automatically pause my payments if I go to jail?
No. The Family Responsibility Office only enforces court orders. Until a judge officially changes your order, FRO will continue to charge you monthly and add to your arrears.
Can I still be forced to pay if I have money in the bank?
Yes. If you have significant savings, passive investment income, or rental properties, the court may rule that you still have the means to pay spousal support despite being in prison.
What happens when I am released?
Most orders suspending support due to incarceration include a review clause. Upon release, you must provide updated financial disclosure so the court can reinstate an appropriate support amount based on your post-release income.
Can the judge cancel the arrears that built up while I was inside?
Yes. If you could not file the motion immediately upon incarceration, a judge has the discretion to retroactively reduce the support to the date you went to prison, effectively wiping out the arrears accrued during that specific time.
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