Can I move my child support case to my own province if my ex lives elsewhere?
Quick Summary
It depends on whether your ex-partner requests to move the case. While the case has already started in Ontario, your ex-partner has a right to ask the court to transfer the matter to British Columbia.
The situation
I am currently living in Ontario and trying to deal with my ex-partner's failure to pay the monthly child support they owe me. For the last six months, they have been consistently late with every single pay cheque, and since January, they haven't sent a single cent for our daughter. I have tried calling them several times to discuss a payment programme, but they just ignore my messages. I recently found out that they have moved away from Ontario and now habitually reside in British Columbia to be closer to their new job. I just received some paperwork in the mail yesterday, the 14th of May, stating that they are being sued in an Ontario court to change the current support amount. Because they are living in BC now, I am feeling very overwhelmed by the distance and the different provincial rules. I am unsure if there is a way to have this legal matter handled through the authorities in my own province instead of having to deal with a court far away, or if I am stuck following the process started here in Ontario despite them living in a different part of the country.
Detailed Analysis
Because your ex-partner has moved to British Columbia and is being sued in Ontario to change the support amount, specific rules under the Divorce Act apply. Since the legal process has already begun in Ontario, you are currently tied to that court. However, your ex-partner has a specific legal option to move the proceedings.
Under the law, if a person is being sued for a variation order (a request to change an existing court order) and they live in a different province, they can take action. The law states that "the respondent may, within 40 days after being served with the application, request that the court convert the application into an application under subsection 18.1(3)"[1]. A respondent is the person being sued. If they make this request, the court must "direct that the application made under paragraph 17(1)(a), along with the evidence in support of it, be considered as an application under subsection 18.1(3), and shall send a copy of the application and of the evidence to the designated authority of the province in which the application was made"[1]. This means the Ontario court would send your paperwork to the appropriate authorities in British Columbia to handle the matter there.
There is an exception to this process. If the paperwork you received includes a request to change a parenting order (an order regarding who the child lives with and how they spend time with parents) alongside the child support request, the court will only allow the transfer if it "considers it appropriate to do so in the circumstances"[1].
It is currently uncertain if your ex-partner will choose to exercise this right. If they do nothing, the Ontario court may proceed with the case in their absence[2]. Please note that provincial or local family law rules may add further requirements to these processes.
Statutory Citations
Legal Citation: Divorce Act § R.S.C., 1985, c. 3 (2nd Supp.), s. 18.2 — Application to court
"the respondent may, within 40 days after being served with the application, request that the court convert the application into an application under subsection 18.1(3). Conversion and sending of application (2) Subject to subsection (3) and despite section 5, the court that receives the request shall direct that the application made under paragraph 17(1)(a), along with the evidence in support of it, be considered as an application under subsection 18.1(3), and shall send a copy of the application and of the evidence to the designated authority of the province in which the application was made."View Official Legislation →
Legal Citation: Divorce Act § R.S.C., 1985, c. 3 (2nd Supp.), s. 18.3 — No action by respondent
"the court to which the application was made (a) shall hear and determine the application in accordance with section 17 in the respondent’s absence, if it is satisfied that there is sufficient evidence to do so"View Official Legislation →
Important Legal Disclaimer
General legal information, not formal legal advice. The information provided on LawAsked does not constitute formal legal advice and creates no attorney-client relationship. If you require legal assistance, please consult a licensed attorney in your jurisdiction.
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