Child support issues can often be a cause of contention for divorced or separated parents. One potential area of conflict can be come when determining when the parent who pays child support is able to stop doing so. Typically, child support obligations end when a child turns eighteen. There are some exceptions to this, such as when a child is pursuing post-secondary education. But what about when the paying parent doesn’t believe the child is serious about those pursuits? What obligations does the parent receiving child support have to inform the paying parent that there is no longer an obligation to pay child support? These issues were recently explored in an decision issued by the Ontario Court of Justice.
The family background
The child of the parties was born in 1989 and has essentially had no relationship with her father. The father paid child support, and by 2006 was paying $583 per month. He continued to pay this amount until 2017 when the province’s Family Responsibility Office (FRO) agreed to discontinue the father’s duty to pay child support. At this time the child was 28-years-old.
The father finally obtains disclosure
On August 4, 2017 the father obtained information he had long been seeking from the mother. At this time, he found out that the child had graduated from high school in 2008. She had since enrolled in six different college programs in three different schools. During this time she only ever earned a total of one credit. By 2017 she had not been enrolled in school for at least four years.
After discovering this, the father argued he should not have been paying support since 2008 and brought a motion to be reimbursed for payments since then – an amount of 66,233.66.
The positions of the parents
The court explained,
“As a result of obtaining disclosure, the father amended his position for trial and asks the Court to terminate child support retroactively as of June 26, 2008, the date that J.K.N. graduated high school. The disclosure the father obtained reveals that J.K.N. enrolled in 6 different college programs in 3 different schools over the years since high school. In fact, in the year that the father launched this proceeding to terminate support, J.K.N., at age 28, enrolled in her 6th college program, after having been out of school for at least 4 years. Her transcripts reveal that she has earned only 1 credit, ever, in these various programs.”
The mother eventually agreed that child support should no longer be provided to her and the child. However, she disagreed on what the end date should be and whether she owed the father for overpayment.
The court’s analysis
The court looked at a number of factors to determine when the child should no longer have been the recipient of support, noting support can be terminated if there is a “change in circumstances.”
By the time of the trail, the daughter was still relied on her mother financially. She still loved at the mother’s house, and the mother provided her with bus tickets, gas money, clothing, food, and shelter. She was not working at the time of the trial, and had not worked on a full-time basis since she graduated from high school.
The court then pointed out that enrollment in post-secondary education does not automatically mean that child support should continue. The court wrote,
“By virtue of section 31(2) of the Family Law Act, an adult child of the relationship who is involved in a full time program of education may nonetheless have no child support entitlement if they have withdrawn from parental control. Ongoing eligibility for support is therefore also dependent on the court finding that the child is unable to withdraw from parental control. A child will be found to be unable to withdraw from parental control if their overall circumstances are such that they remain financially and emotionally dependent on one or both of their parents (Martin v. Taylor, 2007 CarswellOnt 8863 (S.C.J.); Oates v. Oates, 2004 CarswellOnt 2878 (S.C.J)). The analysis of this issue must be undertaken from a broad and objective standpoint. The judge must scratch beneath the surface of outward appearances to determine whether the child is truly dependent on a parent, or whether their overall circumstances are such that they are independent or reasonably capable of being so.”
The court then looked at a number of factors, including the child’s performance in college before determining the cut-off date for child support should have been 2010. As such, the court ordered the father to be entitled to just over $40,000 in reimbursements (with some adjustments due to underpayments by the father on two occasions).
The child support process, especially as it pertains to changes in child support, can be a difficult one to navigate. The experienced team of lawyers at Borden Family Law focus exclusively on family law and have worked on over 4,000 cases. We are efficient and effective in finding solutions to our clients’ problems, and work tirelessly to protect their interests while also keeping costs down through flat fees. Please call us at 905-576-6090 or reach us online if you have a family law issue you would like to discuss.