Child support is frequently a contentious point in divorce cases in Ontario. Where children are involved, emotions run high and this may lead to disputes.
When the family court orders child support payments to be made, they are enforceable by the Family Responsibility Office (FRO) until such time as they are ended.
But what happens when a child reaches the age of majority, which is 18 in Ontario? Does that bring an automatic end to support payments?
What happens if the child’s education continues to post-secondary level?
And does a change of circumstances warrant bringing an end to support before the age of 18?
Not surprisingly, strict rules govern this matter because the welfare of the child is the prime consideration for the Ontario family court in divorce cases.
Is there an automatic end to child support at 18?
To fully understand the approach to child support, we first need to refer to the Family Law Act of 1990.
This states that that:
“every parent has an obligation – to the extent he or she is capable – of providing support for his or her unmarried child who is a minor or enrolled in a program of full-time education or is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.”
The federal Divorce Act (1985) also includes similar obligations for parents to support their children, stating that:
“a court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.”
Note that a specific age is not mentioned in either of the above.
From that, you may infer (correctly) that there is no automatic end to child support once a child reaches the age of 18. It largely depends on the health and educational requirements of the child.
“Child of the marriage”
In Ontario, a “child of the marriage” is defined as:
“a person whom a parent has demonstrated a settled intention to treat as a child of his or her family, except where a child is placed in a foster home.”
The federal Divorce Act defines a “child of the marriage” as:
“a child of two spouses or former spouses who, at the material time,
-
- is under the age of majority and who has not withdrawn from their charge, or
- 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.”
Even though a child legally becomes an adult in Ontario at the age of 18, child support payments may need to continue well beyond that age if he or she remains dependent on the parents or under their control.
A child is not considered dependent if:
- They marry, or
- They are at least 16 years old and leave home
An example where a child will remain “under parental control” after the age of 18 is in the case of a mentally handicapped child.
The most common example of children remaining dependent on the parents is when they enter full-time post-secondary education at a college, university, or other institution.
Where a child from a marriage decides to pursue education beyond degree level (for instance a Master’s or Ph.D.) and the support agreement is questioned by the paying parent, the court will decide whether the expenses of the adult child must continue to be met and, if so, for how long.
Very little is “automatic” with child support. The court will treat each case individually based on the evidence provided and the factors involved.
What is termination by agreement?
Besides a child reaching 18 and no longer being deemed “dependent”, another way to end child support in Ontario is for the parents to sign a legally binding agreement that the support ends on a certain date.
Related: What is Automatic Divorce After a Long Separation?
This would need to be included as a provision in one of the following types of domestic agreements drawn up by a lawyer and approved by the court:
- A marriage contract
- A separation agreement
- A cohabitation agreement
- A paternity agreement
- A family arbitration agreement
Note that, even if there is such a provision in one of these documents, the court has the authority to override it, if it deems that it is in the best interests of the child to do so.
Termination by court order
The end of child support can also be initiated by court order.
Once the court decides, the order will be forwarded to the Family Responsibility Office (FRO) and enforcement of child support payments will end.
Do I Have to Pay Child Support After 18 in Ontario?
In Ontario, the obligation to pay child support does not necessarily end when a child turns 18. While 18 is the age of majority in the province, several factors can extend a parent’s legal responsibility to provide financial support beyond this age. Understanding these factors is crucial for both payors and recipients of child support.
Under the Family Law Act of Ontario and the federal Divorce Act, parents are required to support their dependent children. A child is generally considered dependent if they are under the age of 18. However, the definition extends to those over 18 who cannot become independent due to specific reasons.
When Does Child Support Continue After 18?
- Pursuing Education: If the child is enrolled in full-time education, such as university, college, or vocational training, they may still be considered dependent. Courts recognize the importance of higher education for a child’s future and may require parents to contribute until the completion of their first post-secondary degree or diploma.
- Disability or Illness: A child over 18 who is unable to support themselves due to a physical or mental disability remains dependent. In such cases, the obligation to pay child support can continue indefinitely, depending on the severity and duration of the disability.
- Special Circumstances: There may be other situations where a court deems it appropriate for child support to continue. These are assessed on a case-by-case basis, considering factors like the child’s needs and the parents’ financial abilities.
Calculating Post-18 Child Support
Child support amounts after 18 are not always calculated the same way as for younger children. While the Child Support Guidelines provide a framework, courts have discretion to adjust amounts based on:
- Education Costs: Tuition fees, textbooks, and living expenses related to education may be considered.
- Child’s Contribution: The child may be expected to contribute through part-time work or student loans.
- Parental Income: Both parents’ financial situations are assessed to determine a fair contribution.
Termination of Child Support
Child support obligations generally end when the child:
- Completes their education.
- Becomes financially independent.
- Marries or enters into a union akin to marriage.
It’s important to note that simply reaching a certain age does not automatically terminate support payments. A formal agreement or court order is usually required to adjust or end the obligation.
What Should You Do?
- Review Your Agreement: Check the terms outlined in your separation agreement or court order regarding the duration of child support.
- Open Communication: Discuss future plans with your child and the other parent to understand educational goals and financial needs.
- Seek Legal Advice: Laws can be complex and subject to change. Consulting a family law professional can provide clarity tailored to your specific situation.
In Ontario, paying child support after a child turns 18 is often required, especially if the child is pursuing higher education or cannot support themselves due to illness or disability. Obligations are determined based on legislation and individual circumstances. To ensure compliance and fairness, it’s advisable to stay informed and seek legal guidance when necessary.
Can a change of circumstances end child support?
At the time of separation, each spouse’s financial circumstances are taken into account as well as the needs of the child when decisions are made about child support.
The payment schedule ordered by the court or included in an agreement considers a variety of factors.
Circumstances frequently change over time. A parent’s financial position when the child is aged two years could be very different from the position when the child is 17.
For instance, adverse health or changes in employment circumstances can seriously impact the ability to pay support.
In these situations, the numbers used at the time of the original child support agreement no longer apply and this may trigger modification or even termination of the agreement.
With so many factors to consider, it is not surprising that misunderstandings are common with child support agreements.
If you’re based in the Mississauga area and you have questions about child support or any other aspect of your divorce or separation, contact Amiri Family Law for a consultation.