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Friday, September 13, 2013

"When do my child support payments end?" (2)

We have previously posted in response to this question, here:

http://ontariofamilylawblog.blogspot.ca/2010/03/when-do-my-child-support-payments-end.html?showComment=1379060235828#c1072379374379690057

The post generated many comments and questions so we decided to provide more guidance in the form of the following "flash cards" on this topic:

1. Contrary to a wide-held view, in Ontario child support does not end automatically when a young person turns 18. It also does not continue automatically until a young person is 18, without regard to what the young person is doing. For example, if a 16-year-old leaves school, begins working and moves in with friends, child support will end then and not continue for another two years until he/she turns 18.

2. A young person may continue to be considered "a child" for the purposes of child support even when they are 23-24.  Whether or not they remain eligible to receive support depends on the specific circumstances of each case but generally speaking, if a young person cannot become financially independent because they are still at school or unable to attend school or work for medical reasons, child support may continue to be payable.

3. Child support is the right of the child and not the right of the recipient parent. Parents do not have the right to bargain away, between themselves, the child's right to support.

4. There are different forms of child support contemplated by the Child Support Guidelines. The form and the amount of child support is likely to change when a young person enrolls in post-secondary education and in particular, if they live away from home for part of the year to attend school.

5. The overall means (ie: what is available in funds) of the parents and the child are always relevant to the issue of child support - particularly when post-secondary education is involved. This means, for example, that a parent earning $40,000 a year will not be expected to participate in covering any significant portion of a child's attendance at an Ivy League university in the US, at considerable cost. That parent will only be expected to contribute proportionately to their actual income.

6. The Courts do not simply accept line 150 of a payor's income tax return as an indication of their actual income for child support purposes. Self-employed individuals, in particular, will be subject to much closer scrutiny as to income and benefits available to them, pursuant to the Child Support Guidelines.

Making an important point once again - there are some general guidelines from the law on the issue of child support - there is no doubt about that  - BUT, each case also turns on its own facts and you should consider those specific facts with an actual lawyer to make sure that your particular circumstances are properly addressed.


36 comments:

  1. Hello. I have welcomed this blog and some others in my effort to find out about a few unique matters in my divorce proceedings. Thanks.

    The matter of self employed individuals is truly a complex one. It seems that self employed individiuals aren't always aware that they are held to the same standard as employed persons, when it comes to support calculations, obligations to work, obligations to become self sustaining, and perhaps greater obligations to ensure the viability of their business asset. I think sometimes, that self employed people feel that the value of their business is only worth the effort they put into it, and that they can withdrawal that at any time during separation and therefore its not an asset or a measurable and relevant source of income for all aspects of family law.

    I haven't been able to get some clear answers on some matters relating to my situation but one main question is this. Does a self employed individual, whose business was a going concern at point of separation, have an obligation to take all means to ensure the business operates - even if perhaps, they themselves are medically unable to do so? For example, are they reasonably expected to subcontract their duties or take any other measures? There are two reasons why I ask. The first is of course ensuring that the income obligation is maintained, and available, once the medical matters are addressed. The second of course is about retaining the value of the business asset, which can be an important asset in settling joint property.

    Any response would e welcome.

    ReplyDelete
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    1. You have raised a number of very interesting points in your post. The answer is too lengthy to be provided here. I do have some responses and suggestions - please call the office and I will speak to you...thanks

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  2. this isn't related to child support, but I couldn't find another blog to ask about changing a child's residence.

    I have a 12 year old child who wants to live with me and my present wife. Her mother and I live in the same town about 5 mins apart. My child came to me for a weekend visit and doesn't want to go back to the mothers. What are the legal implications of this? Do I need to take her back to her mothers? The mother is insisting I do and is threatening court action. If she files an emergency motion, do I need to take her back asap or can I wait until the motion is heard?

    I appreciate your help with this

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    1. Anonymous: I would need a whole lot more information to be able to tackle your question and a blog is definitely not the venue to do that. What you need to know is that this is a very serious situation and you need to make some strategically important, reasoned decisions to achieve your goals and to act in your child's best interests. Courts are not keen on people who take matters into their own hands, particularly when it comes to changing a child's immediate surroundings, residence, schooling - all that being said, there may be good reasons for why your child wants to live with you..I simply do not know enough at this point to give you any advice but I DO stress the following - speak to a live lawyer! decisions you make on this issue now will impact on how this issue unfolds and possibly gets addressed by the Court down the road - this is very important!

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  3. If a court order dictates week on/week off with each parent, is the full amount of child support to be paid? This wasn't discussed in the court hearing but if the kids are with each parent 1/2 of the time shouldn't it be reduced to compensate for expenses occurred?

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    1. This is my response based on the information you have provided: "yes" if real life actually matches what the court order says.

      If the children are with each parent 1/2 time then the table amount no longer applies, unless one parent has no income at all. Also, if the children are, in reality, not with each parent one-half of the time, despite what the court order says, then full table support may still be payable. Hope this is of some assistance.

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  4. I have 2 kids. The boy turned 18 last year. The girl turns 18 this year. Both quit school in 2011 and both were working. They had different mailing addresses so not sure who was living with whom. They moved to Alberta in 2011. Moved back to Ontario 2 months ago. I have had zero contact with them in over 3 years. I have had perhaps 2 dozen visits with them in 10 years. There was no divorce as we were not married. In 1999 she just took the kids and moved out-of-Province without consent. Support Order originally filed in 2003 in Alberta and amended in 2009 in Ontario. File is set up with FRO. She has never worked and always been on Social Assistance though she is employable. Can I site termination factors to have support payments rescinded to 2011 as the kids were not in school and both employed? The mother will not allow any contact.

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  5. Due to the high volume of inquiries, we no longer respond to specific posts by specific answers.

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  6. I know someone with a 20 year old that lives 40 from her college she would be attending but wants to live on campus and parents to pay for that and school ect and one of the parents she has stated wants nothing to do with and she doesn't want any money from them would they still have to pay and pay for her living away from home so she can party

    ReplyDelete
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    1. Due to volume of interest, we are no longer able to respond to specific posts and questions.

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  7. My husband has a 18 old daughter that lives with her mom.. we are paying for her correspondence courses every year since she dropped out of high school before completing grade 9. We didn't even know she did that until over 6mths and we kept paying child support. After we found out we wanted her to attend school and we agreed to a correspondence courses. we gave her mom money to register her and for first semester courses. her mother never did anything but spend our money. we wanted the daughter to have a future so we started paying for school. daughter is now taking 2 courses a semester and works part time. i heard that she is considered then a part time student and we do not require to pay child support... is that true!? thank you

    ReplyDelete
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    1. Due to the volume of requests, we are no longer able to respond to specific posts.

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  8. Have 2 children with 2 seperate women, What is the child support rule. Does the table amount simple get divided into 2
    ?

    ReplyDelete
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    1. No, you pay full child support to each of the two women. If you can't afford it, you need to make a "hardship" argument. This is not a simple task - seek advice from a lawyer, please.

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  9. Hi, My dad pays child support to my mom for me and my little brother and has sense we were young though they share custody. I am now 18 and living in a different city attending full time school. I was wondering if my dad still has to pay my mom the portion for me? or can he just give it directly to me instead?

    ReplyDelete
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    1. Please note that this response DOES NOT constitute legal advice.

      That depends on what you mean by "the portion for me"? if you are at school then your parents need to share the cost of your schooling (potentially with a contribution from you as well). Your Dad's share of the schooling cost can be paid to you. Whether your Dad owes your Mom anything further at this point depends on further facts, about which I do not have information here. Please have your Mom speak to a lawyer. It's important.

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  10. If a nineteen year old son has a apprenticeship and is earning between $22,000 and $30,000 a year, is he still considered a student? Is the amount they earn taken into account?

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    1. Please note: this response does not constitute legal advice.

      Our experience is that where parents can afford to do so, they will be expected by the Court to support a young person even through an apprenticeship, if it is a part of a solid education plan. So yes, the Court would likely consider this young person still entitled to child support. That being said, at this level of income, the young person would be expected to make a reasonable contribution to their own education and related costs. Hope this helps.

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  11. I just found out my son was married in 2012 then divorced a year later and moved back in with his mother. should I have continued paying support and am i required to continue now he is back with his mother? He is 25 yrs old. Thanks You

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    1. PLEASE NOTE: this response does not constitute legal advice.

      Jeff, based on the facts as you have set them out, your obligation to pay child support likely ended in 2012. Also, it is unlikely that you owe any child support now - there are rare cases when young people your son's age do get child support but they are not common and based on specific facts. To determine whether your case fits into those rare cases, you should speak to a lawyer. Remember, at that age, it's not the fact that he lives with his mother that would drive the issue of support - there have to be other and very good reasons for you to pay child support at that age. Hope this helps.

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    2. Hi there,i am wondering, i currently pay child support of $467 a month,my daughter is 19 finished high school in January 2015 my ex wont sign papers to end support because daughter is going to university in September 2015.Here comes the questions do i still have to pay support from January to September? The other question is my ex wife claims she is going to give the $468 to daughter when she starts university but i dont believe she will,what could i do about that,i am paying through FRO.Now in our court paper's it does say im not responsible for extraordinary expenses for anything ,tuition,books,residence,or travel costs Should i count myself lucky and just continue to pay the $468 a month or do i go back to court to get a court order that i pay a third,my ex wife pays a third and my daughter pays a third of schooling after her osap loan,would i likely pay more than $468/month if i open this back up.Final question my oldest son just spent 2years in college,he lives on his own with very little income I've been there financially for him all along and the ex wife has not helped him at all, what can he do about this,my son is thinking about sueing his own mom to get the help he should of had,im asking for your opinion because i was told to get a second opinion,Thank You

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  12. THIS RESPONSE DOES NOT CONSTITUTE LEGAL ADVICE: you SHOULD get a second opinion but the internet, and in particular a blog, is not the place to get it.....you have a number of important questions which I cannot possibly respond to without a further context/more facts. Please seek advice in a one-on-one meeting with a lawyer.

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  13. My daughter (21 y) wants to move out and live with her boy friend, whilst attending college full-time in Ontario. If she does, will she still be entitled to receive child support from her father?

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    1. THIS RESPONSE DOES NOT CONSTITUTE LEGAL ADVICE: if your daughter moves out and lives with her boyfriend, you will not be receiving any support for her (but I think you already know that). The question is: is she entitled to any other forms of support from her father (ie: contribution to her schooling costs). The answer depends on a series of other facts, which I do not have. These include her level of already-completed education, his income, her income - the central question is: is she able to be financially independent without her parents' help (because you need to realize that if she is still entitled to support from him, she is entitled to support from you as well). Courts generally say that if a young person acts like an adult (eg: chooses to live and have a household with a boyfriend), then they are no longer entitled to "child" support. There are some exceptions and I would need more facts to know if this is one of them.

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  14. My child is 20 and has moved out of her mothers home and in with her boyfriend. She plans on going to college for a year. She has signed a year lease and is living independently with her boyfriend.

    The courts have stopped child support because she did not attend school and was living with her mother. Now she has moved out voluntarily with her boyfriend but will be attending school for a one year program.

    Will I be required to pay child support to my child when she does not live at home and not in residence? She works full time.

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    1. PLEASE NOTE that this response does not constitute legal advice: Frankly, it depends on the judge. I would say "no" - the fact that she is attending school for a year does not take away from the fact that she is otherwise acting as an adult - the law says that a child over 18 is entitled to continuing child support if he/she is unable to withdraw from her parents' control/care - for medical or financial reasons - here, there are no such reasons - if she is living with a boyfriend and working full-time, I would say she is no longer entitled to child support.

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    2. Thank you for the quick response..... what if my child decides to either quit her job or goes part time in September. Will the judge then rule in favour of child support.

      I have already paid for her September 2015 tuition.

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    3. The fact scenario is getting more and more complicated and I cannot give you a straight answer on a blog (because the answer is not simple). Sorry.

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  15. I'm currently collecting support for 2 children (15 and 18).. my son who is 18 is leaving for University tomorrow (out of town) and will be attending for the next 4 years. Am I still able to collect support while he is away at school? My intentions are to transfer that portion directly into my sons account on a monthly basis to help him out at school. Do you see any problems with me doing so?

    ReplyDelete
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    1. PLEASE NOTE THAT THIS RESPONSE DOES NOT CONSTITUTE LEGAL ADVICE: the answer to your question is not as simple as you might think, Anonymous. I would need a lot more facts. Do you have a court order? do you have a separation agreement? is FRO collecting? how often will your son return home - is he actually living away from home (in residence? in an apartment?) is father contributing to the cost of school? all of these questions are relevant to what you have asked and without answers, I cannot help you. My suggestion is you get a consult from someone and get better answers, it's important.

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  16. PLEASE NOTE THAT THIS RESPONSE DOES NOT CONSTITUTE LEGAL ADVICE: the answer to your question is not as simple as you might think, Anonymous. I would need a lot more facts. Do you have a court order? do you have a separation agreement? is FRO collecting? how often will your son return home - is he actually living away from home (in residence? in an apartment?) is father contributing to the cost of school? all of these questions are relevant to what you have asked and without answers, I cannot help you. My suggestion is you get a consult from someone and get better answers, it's important.

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    1. Thanks so much for your help,
      1) Yes I have a court order. It mentions support ends... (d) the child obtains one post-secondary degree or diploma.
      2) Yes FRO is collecting.
      3) My sons intentions are to come home every summer for work (does it differ is he finds work out of town?).
      4) He is in residence first year (possibly renting in later years?)
      5) No father is not contributing to the cost of school. My son has a student line of credit (in my name as well) and OSAP.

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    2. Again, you need to have a consult with a live lawyer, please. If your son only comes home for the summer, then father does not have an obligation to pay the table amount for the months son is away. Father should be contributing to school costs if he has an income. Yes, OSAP will be taken into account in the calculation of what father owes but son should not have to rely on line of credit if dad has an income. There are a whole host of factors at play here - please see a lawyer in your area for a consult. It's important.

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  17. my children are also parents, yet the fro still claims i owe monthly payments that were ordered in 1996.
    my children are employed and have their own places, and refuse contact.
    what are my options?

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    1. PLEASE NOTE THAT THIS RESPONSE IS NOT LEGAL ADVICE - IT IS DESIGNED TO GUIDE YOU ONLY: - the job of the FRO is to enforce the last court order. They will do so unless and until there is a further order or they receive INFORMATION FROM BOTH PARTIES that the order no longer applies. If the other parent is not cooperating in letting FRO know that child support is no longer payable then you must go to court to change that order. We can help. Please call the office and we will guide you further. Once the order is changed, if you paid for periods when child support was not payable, you will be entitled to money back.

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