In various Blog posts over the years, I have outlined some of the criteria that courts use to determine the amount of child support that may be payable by separating or divorcing parents. This week, I thought I would take a brief look at those scenarios or means by which a child who is otherwise eligible for child support can subsequently become disentitled from receiving it.
Normally, a parent’s support obligation continues as long as the child remains a “child of the marriage” under the Divorce Act, (or otherwise meets provincially-mandated or court-imposed thresholds for entitlement to such support). In the usual course, the obligation generally ends once the child has fully grown up, has obtained an education that allows him or her to find meaningful work, and has moved out of the parental home with the intention of living as a responsible, self-sufficient adult.
However, a child can deliberately or inadvertently cease to qualify for that statutory designation before those milestones have been reached, usually by way of conduct that illustrates a disavowing of the parent-child relationship. For example, in the B.C. case of Dalep v. Dalep, the child perpetrated unprovoked physical assaults on his mother, to the point where it amounted to extreme physical abuse. In finding that the child was no longer entitled to receive support from the father, the court stated:
[h]is conduct towards his mother has been atrocious (and his conduct, unlike that of parties to a marriage, may be considered in maintenance matters). By his conduct, he has forfeited any right he may have had to be maintained by her as a “child of the marriage.” By his own choice he is no longer such.
However, the child’s conduct need not be quite so severe or dramatic: In Randolph v. Randolph, the son quit school over his father’s protests, got a job, and bought himself a car. Although he later returned to school, his father was found not to be obliged to pay support for him. The court said: “He is a grown man and has demonstrated the will to make his own decisions about his own future. He must now live with the consequences of those choices.”
Similarly, a child can forfeit the right to receive child support by actively and voluntarily withdrawing from parental control. In an Ontario decision called Wieland v. Wieland for example, the courts ordered child support payments to be discontinued because the 19-year old child, while living with his mother, had refused to obey the rules of the house or do chores, and had eventually moved out to live in a bachelor apartment on his own. Essentially, he had adopted an adult lifestyle, demonstrating autonomy and freedom from parental constraint and discipline. Likewise, in a case called Busko v. Busko, the father had stopped paying support when his daughter turned 18; the court found he was no longer required to support her since she was living with a boyfriend and was no longer under the mother’s control.
In contrast, in a Newfoundland case called Barber v. Barber, the court ordered an essentially absent father to pay child support – which he had never done in the 13 years since separation – for his 20-year-old daughter who was living with a boyfriend but was struggling to establish herself in the workforce. The court wrote:
The situation pertaining to [the daughter] Amanda Barber is somewhat different. She resides with Nelson Ralph. I am satisfied that the two share all of their expenses equally. I am further satisfied that Nelson Ralph does not contribute any amount whatsoever to Amanda’s share of the expense. I cannot help but be moved by the plight that Amanda finds herself in. She has shown herself to be an enterprising and ambitious young woman. She is virtually supporting herself and paying for her own education with minimal assistance from her mother. Within a few years she will have attained her professional educational qualification and undoubtedly, with such determination, employment. Today she finds that she is unable to provide herself with the necessary wardrobe to take her first step into her professional environment. As well she is finding it difficult to share costs relating to various academic projects with her fellow classmates. For all of the 13 years since her parents separated her father has not contributed to her support. This burden has been borne by the Petitioner [the mother]. The Petitioner now finds herself in the unfortunate situation financially where she is unable to assist Amanda.
The court accordingly ordered the father to pay monthly child support for the daughter, even though they had barely seen each other for more than a decade since he and the mother separated.
As these cases illustrate, the question of whether an older child is still eligible for support, or whether termination of an existing support obligation is warranted, will depend on numerous factors. It is therefore important for payor parents to get competent legal advice in this regard.
For the full text of the decisions, see:
Dalep v. Dalep, 1987 CanLII 2956 (BC SC), (1987), 11 R.F.L. (3d) 359 (B.C.S.C.)
Randolph v. Randolph (1991), 34 R.F.L. (3d) 444 (Ont. Gen. Div.)
Wieland v. Wieland (1994), 3 R.F.L. (4th) 56 (Ont. Gen. Div.)
Busko v. Busko (1990), 28 R.F.L. (3d) 399 (Ont. H.C.)Barber v. Barber (1995), 18 R.F.L. (4th) 282, 137 Nfld. & P.E.I.R. 36 (Nfld. T.D.)
At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.
