by Daniel Romano
My child is 21. How long must I keep paying child support?
When healthy, capable children reach the age of majority (18 in Canada), the question we keep receiving from divorced parents is: “How long must I continue paying child support?”
There are two types of answers.
The technical answer is as follows: “You must continue to pay child support until something is done to change the judgment that ordered you to pay this support.” What this means is that the child support does not simply get cancelled when the child has his or her 18th birthday (has “reached full age”).
Since 1995, the Quebec Minister of Revenue has been available to collect the support from the Debtor and pay it to the Creditor by virtue of a law known as the Act to facilitate the payment of support. Although people can opt out from the Act, it is the default means of transferring support payments in this province. The Minister will continue collecting and paying the child support until it hears from the Court that it must stop.
The subjective answer is far more complicated because it deals with all the arguments for and against the cancelling or even just the modification of support. If a child reaches full age but is still unable to support him or herself because they are still in school then they will likely still be entitled to support.
After the age of 18, however, the calculation of child support will become more flexible and will take into consideration the capacity of the “child” to work part-time to help pay some of the expenses. The real capacity of both parents to pay for the child’s course of study is carefully assessed. A parent who is barely getting by financially will usually not be asked to pay for the university studies of healthy and capable offspring. The beneficiary of the support payments may choose to move out from the residence of the parent who had been receiving the child support, in which case, support payments could be modified so as to be paid directly to the child as opposed to the creditor parent. Careful consideration is given to the seriousness of the studies.
We see many examples of medical students being eligible to receive support well into their late twenties. On the other hand, when a 22-year- old son was studying software engineering and wanted to change his major to sociology, the Court ruled that the father would have to continue paying for the software engineering courses but would not be required to finance a second and unrelated degree, which was the child’s personal choice.
The courts may also be ready to cancel payments where sufficient proof is made that the child is just being lazy, wants the support payments to pay for something frivolous, behaves unacceptably toward the debtor parent, is living independently with a boyfriend or girlfriend, is not taking the studies seriously, has poor grades, withdraws from courses frequently or keeps changing programs. In the words of the Hon. Pierre C. Gagnon, J.S.C.: To qualify for parental support, university studies for an adult child must be taken seriously by that child and they must show determination to graduate from the course of studies within a reasonable delay.
Daniel Romano is an attorney with KALMAN SAMUELS, a family law firm. Next issue we address Marriage among Seniors – Yes, I’m getting married again. What should I be concerned about?
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