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Article written by Ron Shulman
In Ontario under the Family Law Act, R.S.O. 1990 c. F.3 (the “FLA”) there is main governing principle set out in s. 31: that every parent has an obligation – to the extent he or she is capable – of providing support for his or her unmarried child who is a minor or enrolled in a program of full-time education. Likewise, the federal Divorce Act, R.S.C. 1985, c. 3 (2d. Supp.) (the “Divorce Act”) under s. 2(1) establishes equivalent obligations on parents to support their child who is unable to “withdraw from their charge”, and the Federal Child Support Guidelines, SOR/97-175 (the “Guidelines”) contains similarly-worded obligations.
This means that the commencement of a parent’s child support obligations is easy to pinpoint: it starts at birth (or, for step-parents, under s. 1 of the FLA, the point at which he or she has “demonstrated a settled intention” to treat the child as a member of his or her family). However, the end-point of those same duties can sometimes be significantly more difficult to identify, because it can arise in several different ways, some of which are more straightforward than others. So the basic question of “when does child support end?” can really only be answered in Ontario with “it depends”.
- No Automatic End to Support at Age 18
Each of the FLA, Divorce Act, and Guidelines obligations refer to beneficiary of that support as being a “child” and/or “child of the marriage”. Although in Ontario the legal age of majority at which point a person stops being a child and becomes an adult is 18, support can continue well beyond that age if the child is still dependent or under parental control within the meaning of certain established statutory tests. In other words, there is not necessarily an automatic cut-off at age 18.
For example, under the Guidelines – which defines “child” to simply mean “child of the marriage”— a person who is over the age of 18 can still qualify for child support if he or she is in full-time attendance at school. The same extended support entitlement is found in the other two Acts as well: Under the FLA, child support is payable in respect of a person who is under 18, or else is over 18 and in a full-time program of education. Similarly the Divorce Act specifies a “child of the marriage” to mean a child of two spouses or former spouses who, at the material time, is under 18 and has not withdrawn from their charge. (This can also include someone over 18 and under the parents’ charge but is unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life).
Thus, the primary obligation on a parent is to support a child until the age of 18, or beyond that age if legislated conditions are met. With that said, note that in a case called Smith v. Smith, 2008 SKCA 141 the court emphasized that it is incorrect to presume that the obligation to support a child automatically extinguishes at age 18 unless the support claimant applies to establish ongoing dependency.
- Post-Secondary Education
As a side-issue, the legislated extension of support eligibility in the FLA and the Guidelines for adult children participating in a full-time program of education gives rise to a complex related question: What is the length of time for which a support-paying parent should be responsible to pay the expenses of an adult child who chooses to pursue post-secondary education (i.e. second or third university degrees, such as a Master’s degree, or a Ph.D.)?
As a baseline, both amount and duration will be governed by the provisions of the Guidelines, which provides that for children over 18, the Table amounts are presumptively applicable unless the court consider it inappropriate in the circumstances to do so. Beyond that, however, the court has broad discretion to evaluate and assess the overall merits and context in which the adult child is embarking on his or her post-secondary course of study, and by extension to determine when child support should end.
Courts are generally flexible in their assessments as to what constitutes a full-time program of education; to qualify, the child need not necessarily be in full-time attendance in all cases, nor is it always mandatory that the child have a full-time course load each term. Nor, for that matter, is the entitlement to support automatic; the court must be satisfied that the child’s chosen educational plan is reasonable in light of various factors, including the child’s own abilities, the means and needs of both the child and the parents, and the expectations of all of them.
To make this complex assessment, the court will assess a broad spectrum of considerations, which a B.C. court made initial steps at enumerating in detail in a decision called Farden v. Farden, 1993 CanLII 2570 (B.C.S.C.). The court set out a fairly comprehensive set of factors, and that list has been routinely applied as a starting-point in many family courts across Canada ever since.
In practice, the end-result of the court’s case-by-case assessment is a dizzying patchwork of precedent decisions, some of which may seem to contradict each other. Indeed, experienced family lawyers know that there are no cut-and-dried answers when it comes to advising their clients on how long support may last for adult children attending post-secondary education. These determinations are always made on an individual, fact-specific basis.
- Termination by Agreement, or By Order
Leaving aside the sheer passage of time, and viewed from a more procedural standpoint, child support obligations may terminate in one of several other ways.
The parents themselves can agree to terminate child support at a certain point, by including a provision in a stand-alone domestic contract (which under s. 51 of the FLA means a marriage contract, separation agreement, cohabitation agreement, paternity agreement or family arbitration agreement). The agreement will expressly provide for the date on which the support obligation terminates, and when that date passes, the paying parent is no longer obliged to pay support. With that said, the courts are always imbued with the authority to override the parents’ agreement, if it finds that it is in the best interest of the child to do so. The terms of a domestic contract can never override the court’s jurisdiction with respect to child support (see s. 15.1 of the Divorce Actand s. 56(1.1) of the FLA; see alsoDougherty v. Dougherty, 2008 ONCA 302, 2008 CarswellOnt 2203).
Alternatively, the end-date may be embodied in court order, with the same effect. In situations where the order has been forwarded to the Family Responsibility Office (FRO) for enforcement, the parents much each give notice that the support obligation has been terminated). The Director will stop enforcement on the stipulated date. (Note that if no date is specified but it is otherwise warranted in the circumstances that support should terminate, it may be necessary to obtain the consent of the support recipient to terminate support, or to bring a motion for an order to terminate, to authorize the Director to cease enforcement).
- Change of Circumstances
Normally when a parent’s child support obligation is quantified and given a payment schedule (whether by agreement, court order, or otherwise), that imposed structure has been predicated on the existence of certain underlying facts and factors. If those factors change – whether due to the passage of time or altered life circumstances such as the loss of the paying parent’s job, a deterioration in health status, or any other change in either the needs of the child or the ability of the parent to pay – then the combination of those changes may give rise to the situation where the termination of child support is warranted.
- Limits Derived from the Application of the Child Support Guidelines Calculations
The most straightforward of these scenarios is purely mathematical. As indicated, one of the starting-points for determining the limits on a support-paying parent’s duties are the Guidelines, which contain numerous fact-tailored formulae which take into account numerous variables. Depending on how they are to be applied and the numbers/duration figures they generate, a change in circumstances and a corresponding adjustment to the formulaic calculations can implicitly trigger the end-point for support-paying parent’s obligation.
- Applications for Variation
In a related vein, and leaving aside the mathematical foundation for support quantumand duration, if the support obligation is embodied in a broader order or agreement (for example a divorce order that takes into account not only child support but also spousal support and custody), a more esoteric change in the needs and means of the family may necessitate a change in the underlying order. This arises by way of an application to vary, which under s. 37(2.1) and (2.2) of the FLA authorizes the court, using its broad discretion, to assess whether there has been a material change of circumstances within the meaning of the Guidelines that warrants varying or suspending child support where warranted.
- Unilateral Termination of Support
As mentioned above, the baseline obligation on a parent to pay support for a child comes from the legislated wording that refers to a “child” or “child of the marriage”, as contained in the FLA, the Divorce Act, and the Guidelines. However, even if a child is under the age of 18, there are some relatively-uncommon family situations where it can be said that the interpersonal relationship between parent and child has ended, to the extent that the child no longer meets those criteria and that the parent’s corresponding support obligation is over. Although this is not particularly common, it remains one of the potential scenarios in which child support can legally come to an end.
Specifically, where a mature child unilaterally ends the relationship with one of the parents without any apparent reason, this can be a factor for the court to consider in determining whether it would be “fit and just,” to provide support for the child (Law v. Law (1986), 2 R.F.L. (3d) 458 (Ont. H.C.); Gloger v. Gloger, 2014 ONSC 379). Under the Guidelines, a child’s repudiation of their relationship with the paying parent may be one of the factors considered by a court in deciding whether it is “inappropriate” to order child support in accord with the Table amounts and s. 7 (Whitton v. Whitton (1989), 34 O.A.C. 31 (Ont. C.A.)).
Note that where a child has repudiated the relationship with the parent, the focus of the analysis is not whether there has simply been a breakdown, an argument, a falling-out or a drifting apart – rather, the focus is whether there has been a “unilateral termination of the relationship” by the child. (Caterini v. Zaccaria (2010), 97 R.F.L. (6th) 249, 2010 ONSC 6473, 2010 CarswellOnt 9344 (Ont. S.C.J.)). The facts and outcomes will naturally vary, but in some cases it has been affirmatively held that a child of the marriage is entitled to support even if he or she refuses to communicate with the parent (see for example Whitton v. Whitton (1989), 34 O.A.C. 31 (Ont. C.A.)). The onus is always on the parent to establish that the relationship has been repudiated, and to show that he or she has made meaningful efforts to maintain a positive relationship with the child (see Menegaldo v. Menegaldo, 2012 ONSC 2915 (Ont. S.C.J.)).
With that said, the reverse scenario – where it is the parent who unilaterally terminates the relationship – is not as straightforward. Without more, a parent in this situation simply cannot expect to escape liability for child support (see for example Chartier v. Chartier (1999), [1998] S.C.J. No. 79 (S.C.C.)); and VanSickle v. VanSickle, 2012 ONSC 7340; additional reasons at 2013 ONSC 437).
Even in cases where it might be said that there was a mutual, two-sided termination of the parent-child relationship, the outcome of a bid to terminate support is not always certain. In Fiorino v. Fiorino, 2013 ONSC 2445 the court determined that the child had not unilaterally terminated the relationship, and moreover took issue with the characterization of the fracture as “mutual”; it held that the father should have taken greater steps to re-establish the parent-child connection. As such, the court found, he remained liable for some child support.
Finally (and perhaps surprisingly), the question of when child support terminates is not a simple one even in the case of step-parents’ obligations. After a series of conflicting decisions by provincial courts, the Supreme Court of Canada decision in Chartier v. Chartier, [1999] 1 S.C.R. 242, held that a step-parent cannot unilaterally terminate a relationship with a step-child merely because he or she ends the relationship with the child’s biological parent. Instead, the court must look at the nature of the relationship to see whether the step-parent stands in loco parentis; in the proper circumstances the step-parent may continue to have joint and several obligations to the child in the same manner as the biological parent.
For related posts from the Shulman Blog, see:
How Long Do Parents Have to Support Their Children?
Supporting Adult Children Through School – The Specific Factors
Paying for Post-Secondary Education – How Far Must Parents Go?
More on Child Support for Adult Children Pursuing Higher Education