An Ontario court recently decided that a father was entitled to repayment and termination of child support paid for his now 29 year old daughter.
The father sought to have a 2006 order terminated retroactively. The order was made when the couple’s daughter was 16 years old. The father was ordered to pay $583 per month in child support. In the following years, the daughter lived with her mother. The daughter essentially had no relationship with her father.
The father had made the child support payments until April 2017, when the father succeeded in having the Family Responsibility Office (“FRO”) discontinue enforcement. The FRO had agreed to discontinue support enforcement in 2017, when the daughter was 28 years old.
The father then commenced a court proceeding with a motion to change and asked the court to terminate child support retroactively as of June 26, 2008, the date that the daughter graduated high school. The disclosure the father had obtained revealed that the daughter had enrolled in 6 different college programs in 3 different schools over the years since high school. Her transcripts revealed that she had earned only one credit, ever, in these various programs. At the time of trial, the daughter was 29 years old.
Despite the fact that the daughter had enrolled in various college programs after high school, the father argued that the child support should have ended as of her high school graduation. He argued that his daughter did not apply herself at college when she was enrolled, and at times, she was enrolled part-time or not at all. He claimed that she switched programs multiple times, earned very low grades or no grades at all, failed to attend classes, withdrew from courses, and never obtained a degree or diploma.
The father stated that his proposed termination date would result in the mother owing him $66,233.
The mother’s response was that the court should only terminate child support retroactively to January 1, 2014. While the mother agreed that child support should terminate retroactively, she disputed that she owed the father any money back, or at least not as much money as the father was claiming. She also claimed the father owed her for prior costs in the amount of $23,273. The mother also argued that the father failed to provide annual disclosure, that he failed to adjust his child support upwards when his income increased, and that he failed to contribute towards the cost of the daughter’s college courses. She argued this was blameworthy behaviour that should be taken into account.
At trial, both the mother and daughter testified that the daughter was financially dependent on the mother. The daughter added that she was also emotionally dependent on her mother.
The mother testified that she paid for the daughter’s food, clothing and shelter. She has also paid for the daughter’s college tuition.
The daughter testified that she had been unable to move out of her mother’s home because she was not financially stable. She said that her mother helped her if she needed bus tickets, gas money, clothing, food and shelter.
At the time of trial, the daughter did not have a job. She had not worked on a full-time basis since she graduated from high school.
The court began by setting out the definition of “dependant” under the Family Law Act (the “FLA”), which reads: “‘dependant’ means a person to whom another has an obligation to provide support under this Part”. Additionally, s. 31 of the FLA states:
“Obligation of parent to support child
31 (1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who,
(a) is a minor;
(b) is enrolled in a full-time program of education; or
(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.
31 (2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.”
The court looked at length at the daughter’s academic record and enrolment in post-secondary programs.
Ultimately, the court found that the daughter’s entitlement to child support terminated as of April 30, 2010. The court reasoned that it was at that time that the daughter had failed to succeed at or attend school and should have taken steps to earn an income and start supporting herself.
As a result, the court found that the father had overpaid child support in the amount of $41,000 and ordered the mother to repay that amount, minus the amount of two previous cost orders.
Since child support issues have the potential to become complicated, it is essential to obtain knowledgeable and proactive legal advice as early in the separation process as possible.
Mark Feigenbaum brings years of litigation, corporate law, tax law, estate law, and accounting experience to family law disputes. Mark can help you protect your children and your assets, including your business if you are a professional or business owner and guide you through the process of starting your new life. Mark’s goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible.
If you own a business or have a high-net-worth, and are going through a separation or divorce, it is crucial to obtain guidance from a family lawyer who understands your specific needs. Mark Feigenbaum can ensure that you meet your child support obligations, while maintaining financial stability, and protecting your assets. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.