Negotiating a separation agreement is difficult, especially when children are involved. Even in the most amicable of splits, dividing up assets, figuring out custody arrangements and deciding on the terms of spousal and child support are daunting tasks.
Equally daunting for many separated parents is the financial prospect of paying child support, or the possibility of it ending.
Fortunately, the federal Divorce Act and its provincial and territorial counterparts have done much to streamline the process (see “Calculating support”).
But pinpointing when child support ends—that is, when a child ceases to be a so-called “child of the marriage” and is therefore no longer entitled to support—can be a tricky process. This can come as a rude awakening to clients looking forward to the end of those monthly payments to their former spouses or, conversely, hoping for their continuation.
“Child support is one of those things [that] is simple in about 70% of cases and very fact-driven in about 30% of cases,” says Toronto-based family lawyer Ron Shulman, founder of Shulman Law Firm Professional Corporation. Even if parents agree on support amounts and duration at the time of the separation, he notes that doesn’t mean courts can’t overrule their agreement 10 years later.
“The courts always remain focused on what’s best for the child at any given time.”
The details of support arrangements
The Divorce Act stipulates that parents are obligated to provide support for their unmarried minor children, and for unmarried children over the age of majority but who are “unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessities of life.”
Amounts are adjusted annually based on income. So, if a parent loses his job and is no longer able to afford payments, or his income rises dramatically, the amount will change. It’s important to note, says Victoria-based family lawyer Karina Sacca, that the guidelines look only at income, not assets. So a parent with substantial savings but relatively little income could receive support from an ex-partner who out-earns him but has nothing in the bank.
The “other cause” mentioned in the Divorce Act usually means the child is enrolled full-time in post-secondary education. But here, things can get murky. What if a child attends part-time, or doesn’t attend immediately after high school? What if she drops out and works for a couple of years, and then decides to go back? What if she does postgraduate work (see “Degrees of support”)? Is support payable during the summer? What if the child is in residence?
At the heart of these questions, says Marie L. Gordon, QC, a partner at Edmonton-based Gordon Zwaenepoel, is whether the kids still qualify as “dependent children of the marriage.” Courts, she says, tend to give adult children a great deal of discretion in these matters. So an 19-year-old who has taken a year off after high school, and is thus no longer eligible for support, may see that support reinstated if she decides to go to university. Courts may also be more forgiving of a lighter course load. Usually, support must continue throughout the summer, often with a provision that the child work during those months to help defray the costs of tuition and living expenses.
But what about that healthy but aimless adult child who’s failed to launch—is he unable to “withdraw” or “obtain the necessities of life”? No, says Sacca. “If you’re not in school and you’re working at Starbucks and you’re living in your mom’s house because you can’t afford your own place, I don’t think you’re going to qualify as a child of the relationship.”
Stepparents and blended families face another layer of potential confusion. Support obligations begin when a stepparent demonstrates a “settled intention” to treat a child as a member of his family, and acts in a parental role. This could include attending parent-teacher conferences, making doctor’s appointments or driving the child to soccer practice.
Part of acting as a parent, however, means being obligated to pay child support in the event that a stepparent splits from a child’s biological parent. But in these cases, Shulman says, courts have more leeway when it comes to guideline amounts. “Again, these cases are very fact-driven.” For instance, a judge may take into account whether the first ex-partner is already paying support and how much, as well as the relative incomes of the parent and the stepparent, whether there are other children to support and custody arrangements. In what Sacca terms this “cluster of interwoven obligations,” a stepparent’s obligation is generally secondary to that of the first parent. Still, it wouldn’t be unheard of to have two parental figures paying partial or even full guideline amounts.
Estrangement is another grey area when it comes to child support, since it’s not clear if a parent is obligated to support a child who refuses to have anything to do with her. A 16-year-old who’s moved out for good and supports herself has voluntarily withdrawn from parental control, so she’s not eligible for support.
But in cases where a child refuses to speak to the paying parent, courts tend to uphold support as a basic need—one, notes Sacca, that doesn’t require the prerequisite of a good parent-child relationship. Conversely, a parent can’t expect to escape liability for child support by unilaterally terminating her relationship with her child.
“It’s a very extreme thing for a judge to say to a child, ‘You behaved so badly that although you might otherwise be entitled to child support, we’re going to cut you off,’ ” echoes Gordon. “Judges are loath to do that except in the most egregious situations.” A pattern of unwarranted and abusive communications from the child to a parent (for example, “I hope you die soon,” or “I want nothing to do with you for the rest of my life”) might trigger judges to reduce or terminate support.
The end of support
Eventually, child support payments will end for most healthy young people. (Disabled children who live with their parents may be eligible for support indefinitely under the Divorce Act.) The so-called terminating event could occur, for example, when a child reaches the age of majority, graduates from a post-secondary program or voluntarily withdraws from support.
If support is paid through a provincial agency like Ontario’s Family Responsibility Office, the office will discontinue payment when it has received confirmation of the event from both parents. If parents disagree about terminating the event, they may work with lawyers or mediators to come to an agreement, or go to court.
Parents can also simply agree that the payments will stop, often according to a termination clause in their separation agreement or other domestic contract. These clauses are fairly routine in lawyer-negotiated agreements, says Shulman, but they are not universal. In more volatile situations, he says, and when children are very young, “[parties] don’t necessarily want to argue today about what will happen in  years.” Courts rarely order termination clauses “because it would be presumptuous [of them] to decide what’s going to happen in 15 years.”
A prenup or cohabitation agreement for second marriages might specify that one or both partners’ children will not be considered children “of the relationship” and there will be no obligation for support. While such clauses are routinely used to help establish intent, says Sacca, “case law says that child support is the right of the child and that you can’t contract out of paying it. It might be treated with more leniency when it’s the second relationship and there is already a first parent paying support. But I don’t know if it would withstand judicial scrutiny.”
Degrees of support
Canada’s federal Divorce Act stipulates that parents must provide support to unmarried children enrolled in full-time post-secondary education. Ontario and B.C.’s family law acts have similar provisions. Traditionally, Ontario and B.C. courts have interpreted the legislation to mean a four-year undergraduate degree, with support terminating at graduation. But in Alberta, the child does not necessarily have to be a student full-time. “It’s not limited to a four-year undergraduate degree,” explains lawyer Marie Gordon. “It might be a two-year college diploma, or a trade school certificate.”
But are divorced parents obligated to support a child who wants to pursue a master’s degree, go to law school, become a doctor or do a PhD in cultural and film studies?
In short, no one knows. Alberta’s Family Law Act provides some clarity by stipulating that support for a child in full-time post-secondary education ends the day before the child turns 23. In Ontario and B.C., though, that endpoint isn’t as clear.
“There are no specific cutoffs as to how many post-secondary degrees a parent must support,” says Toronto-based family lawyer Ron Shulman.
While Ontario courts typically won’t order support after the first degree, he notes, there have been cases where a court might determine that it makes sense to do so. In making that determination, judges routinely consider a comprehensive list of considerations outlined in a 1993 B.C. court decision, Farden v. Farden, to determine whether further support is warranted. These factors include a child’s age, previous academic performance, career plans and ability to contribute financially to his education, as well as any plans the parents made for their child’s education, especially while they were together.
The situation is similar in B.C., says Victoria-based lawyer Karina Sacca, who finds it “frustrating and infuriating” that parents who remain married do not have the same obligation to support their children through higher education.
Parents’ own educational attainment and circumstances may also be considered in a subset of cases. Courts may require contributions to graduate education, says Edmonton-based family lawyer Marie Gordon, in circumstances where parents are wealthy or hold advanced or professional degrees.
For parents worried about how they’ll fund their offspring’s four years at Harvard Medical School, Shulman notes that even where a court decides that a child’s educational plan is reasonable and support is warranted, it has broad discretion on the amount. Further, it may take into account parents’ financial circumstances, as well as the Farden factors.
Federal Child Support Guidelines determine the amount of child support payable according to each parent’s gross income, custody arrangements, number of children and the province where the paying parent lives. Where children live with one parent more than 40% of the time, guideline amounts may be adjusted to reflect both parents’ costs, as well as factors including whether they live with a new partner or have other dependants to support.