Help! My Ex Is Withholding Access Unless I Pay Him Child Support

This is a terrible and fair situation and one that the law does not allow. But, if you are not paying appropriate child support, you may not get much sympathy from a family court judge, who may be the only person who can make sure you see your children. 

Becoming engaged in family law litigation is a stressful occurrence for anyone. Family Court is a complicated and unfamiliar process. You should listen to my podcast (Part I, II, III) about what to expect when involved in the family court process. You can also watch the video below about how to present a winning strategy in court. If you are responding to a claim for support or making a claim for custody or access, it is important to talk to an experienced family lawyer sooner than later. A good family law lawyer will help you draft your pleadings in a manner that puts your best foot forward and will greatly increase your chances of being successful with your claims.

In Ontario, custody and access, and child support are two discrete issues. One does not follow the other and a parent cannot deny access because the other parent is not paying child support or because that spouse wants increased support. To do so would essentially allow one parent to hold the child hostage for ransom. Judges do not like to see parents taking such self-help measures. Also, the right to access between you and your child is your child’s right and is not one that your spouse can unilaterally terminate or curtail. The fact that you have seen your child so infrequently is troubling and needs to be addressed. You should speak to a family lawyer right away about steps to make sure your child can spend time with you. Unless there are pressing reasons why you should not have access to your child, the current level of contact that you have with your child is wholly insufficient. Although there are several factors judges consider when deciding child custody and access cases, how much support a parent is paying is not one of them. 

If you have been consistently trying to have access to your child and your spouse is preventing you from doing so, a judge can order that the child be returned to your care. The applicable section is s.36(1) of the Children’s Law Reform Act. Under that section, if there are reasonable and probable grounds to believe that a child is being unlawfully withheld from a custodial or access parent, the Court can order your spouse to deliver the child to you. In such cases, it may also be appropriate to ask the court to vary the current custodial and parenting arrangements so that you play a larger role in your son’s life and your ex cannot continue to minimize this. You should watch the video below explains the different custodial arrangements in Ontario and the situations where judges order each.

With regard to child support, it seems apparent that there needs to be an adjustment or reapportionment of child support. You should watch the video below and listen to this podcast where I explain the general framework for child support in Ontario, including who pays to whom, how much and for how long. If your ex owes you child support arrears and you owe your ex ongoing support, there may be a set-off, where any amount you owe for child support will be deducted from amounts that your ex owes you. 

If you already have a support order, and the dispute is over what the appropriate amount of support should be, watch this video on how to change a support order.

To learn even more about child custody issues, child support, and how to deal with both the inside and outside of court, get a copy of this best-selling easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac. You may also want to listen to this podcast. You can also use the search on the right to find lots more articles about child custody, support and divorce.

To learn the best strategies to protect your kids, and your relationship with them, contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5847, or using the contact form below. We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).

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