How to get divorced if other parent is not paying support

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BlueDressInToronto

New member
My lawyer has said it's difficult to get a divorce approved if the other parent is not paying appropriate child support. My stbx has yet to pay any child support (it's been years) and I haven't pushed for it because I don't think he can afford to pay it.

Any advice?
 
WHen you apply for divorce according to the paperwork you will have to show agreement that child support would be payable or if it is not, you will have to provide a valid reason (not being able to pay or not having paid is not a good reason). A valid reason could be that the parent with custody - or both parents in case of joint custody - have adequate income / resources on their own to support the children and the child support payable under the rules would not materially make any difference to the lives of the kids.

The court will only push for actual payment if you go asking for the money ... i.e. if you go to court or FRO to get that support that is due.

So in my opinion, getting a divorce shouldn't be an issue if you aren't expecting the other parent to pay and aren't going to push for it.
 
BlueDressInToronto said:
My lawyer has said it's difficult to get a divorce approved if the other parent is not paying appropriate child support. My stbx has yet to pay any child support (it's been years) and I haven't pushed for it because I don't think he can afford to pay it.

Any advice?
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Do you have a separation agreement that covers the amount your ex is supposed to be paying? Even if it reads zero? If so, a divorce ought to go through with no problems. Mine did.

If you do have such an agreement, and there is a non-zero amount of CS listed but you aren't bothering to push for enforcement, the judge isn't going to know that when he signs off on the divorce.

If you don't have a separation agreement, that's where you can run into trouble getting a divorce. A judge isn't going to sign off if he can't see that all the legal matters have been dealt with and arranged.
 
BlueDressInToronto said:
My lawyer has said it's difficult to get a divorce approved if the other parent is not paying appropriate child support. My stbx has yet to pay any child support (it's been years) and I haven't pushed for it because I don't think he can afford to pay it.

Any advice?
Click to expand...

1. Child support is the right of the child and not the right of either parent.

2. If the child is residing with you on a majority time basis then the other parent should be paying child support.

3. The child support guidelines consider the income of the other parent and the amount of support they should be paying so you shouldn't "worry" about if the other parent can pay. They are REQUIRED to pay.

4. A judge will likely not grant an order for divorce when there is a child of the marriage and support is not defined and not being paid. That is because the best interests of the child trumps the parent's interests.

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The way to do it though is to include child support as a part of the agreement in accordance with the child support guide lines and then complete a withdrawal from FRO form and provide a paragraph that the child support will be paid through alternative means. (e.g. Bank-to-bank transfers.)

If you choose not to collect on the child support as ordered that is really your business really. As long you agree to withdraw from FRO and complete the necessary paperwork and don't seek to have the order enforced you can both to agree to ignore that component of the order.

I would strongly recommend you collect the appropriate child support for the child in question as it is their right.

Good Luck!
Tayken
 
Thank you for the advice. I am going to talk with my lawyer again on Thursday.

We have nothing in writing even for our separation over two years ago as he won't sign anything. It's quite frustrating.
 
If it's been two years of negotiations and nothing forthcoming, you can move ahead with obtaining a divorce on your own, even if you don't have a separation agreement. One of you can "sue" the other one for divorce. It's easier if everything has been agreed on before the paperwork is put into process, but it's not absolutely essential. The exact procedure varies from province to province, but basically, you set the wheels in motion by serving legal papers on him informing him that you are seeking a divorce from him at the provincial court. One person can't really refuse to be divorced if the other party wants to end the marriage.

The fact that he hasn't paid child support is not going to cause a judge to withhold a divorce. If either of you is legally responsible for paying child support to the other, a judge will require that a paragraph to that effect must be placed in your divorce order. You can determine who should be paying how much by consulting the Federal Child Support Guidelines, or by searching many threads on this site.
 
Tayken is correct in that the support is the right of the child.

Your order should be registered with your Provincial maintenance enforcement agency. Your ex can get advice from them (FRO) as to what to do if he cannot pay. He would complete a Statement of Finances and submit to them.

Having FRO/MEP intervene is beneficial as you don't have to hear his 'swan story' and make a judgement call when you are not privy to his finances. I'd recommend letting FRO do what they are mandated to do.
 
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