Child support is often a contentious issue for families, especially when there is conflict between a child and a support payor parent.
In the aftermath of a family separation, a child may assign blame to one parent and resist spending time with them, but what happens if the situation persists, causing a permanent disruption to the parent-child relationship? Is a parent obligated to continue paying child support if their adult children refused contact with them?
Burden of proof
That was the question in a recent case involving an Ontario father who asked the court to terminate his child support obligations based on the fact that his 18-year-old daughter refused to see him or discuss her plans with him.
At the time of the proceeding, the daughter was finishing high school and making plans to attend university with the expectation that she would have her father’s financial support.
The father argued that his daughter’s actions put her “beyond parental control and outside the definition of a child of the marriage,” and that he should be relieved of his obligation to continue paying support.
But the judge did not agree. Under the Divorce Act, a “child of the marriage” is defined as one who is “the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.”
Justice Martin James said the phrase “or other cause” is broadly defined and includes the continuation of the child’s education well into their 20s and that in most cases, disruptions in the parent-child relationship have complicated and multi-faceted causes.
“There is nothing in the Divorce Act or the cases decided pursuant to the Act that says a child must get along with a parent in order to be entitled to support except in extreme situations,” the judge wrote in his decision.
Child support obligations
When it comes to a parent’s obligation to support their children, the law is clear: Every parent has a legal duty to support their child — whether it’s a biological child or one for whom they stand in place of a parent — who is under the age of 18 or enrolled in a full-time course of education.
If they are over the age of 18, and working full-time, they may not need to be supported. However, if they are pursuing post-secondary education, there may still be an obligation to continue support, depending on the family’s financial circumstances. For example, if the child didn’t qualify for student loans and the parents have the ability, they may be required to contribute to educational expenses.
Throughout Canada, the amount of child support is determined by way of a standard guideline and is based on a parent’s gross annual income and the number of children. If there are extraordinary circumstances — special education, daycare, tutoring, extracurricular activities and so on — parents are to share the expenses in a percentage split based on gross annual incomes.
It should also be noted that in Ontario, we have a 40 per cent rule: If the non-residential parent spends more than 40 per cent of the time with the children, that parent may seek permission to pay an amount that is less than the guideline, depending on the circumstances.
Exceptions to the rule
Unfortunately, there are cases where an older child, of their own volition or through encouragement, becomes estranged from one parent. If the parent-child relationship has been fractured beyond repair and the support payor can prove they had no role in its demise, there may be grounds to argue for relief of support obligations.
The burden of proof required to establish that a child has unilaterally terminated their relationship with a parent for no good reason is high. These cases, often referred to as “parent as wallet” cases, turn on evidence.
Relieved of duty to pay child support
In 2017, a British Columbia court found that a daughter had effectively terminated her relationship with her mother and that the child’s “unilateral decision to completely exclude her mother from her life is not explained or justified.”
For years, the daughter refused all contact with her mother and gave no explanation for her antipathy and rejection of a relationship with her. In this case, the judge allowed the mother to terminate support for her daughter.
“I find that she is no longer a ‘child of the marriage,’ and that consequently, the respondent is no longer obliged to pay support or to contribute to s. 7 expenses,” the judge wrote in his decision.
In 2018, an Ontario court was also asked to determine whether a couple’s 25-year-old daughter should continue to be viewed as a child of the marriage, and as such, entitled to support.
In that case, the court highlighted that economic dependence is the essential feature of whether a child is under a parent’s charge. Pointing to the fact that the young woman had arranged for a loan to cover the cost of attending medical school in the Caribbean, the court found she had withdrawn from her parent’s charge and was no longer a child of the marriage.
Two years later, in 2020, the Supreme Court of British Columbia relieved a father of his obligation to continue paying child support for his two sons, aged 19 and 21, finding that both had chosen to terminate any relationship with their father despite ongoing efforts by him.
“While the evidence strongly supports a finding that the reason they did so was the respondent’s conduct in alienating them from their father, Nicolas and Mathew are now adults and their continuing unwillingness to have anything to do with the claimant or even engage in communication, using him simply as an “open wallet”, is a factor that cannot be ignored,” Justice Gordon C. Weatherill wrote in his decision.
If you would like legal advice on your options for varying a child support order, schedule a consultation with one of our experienced family law lawyers. We would be happy to help you.
Photo Credit: Adobe Stock
Comments