Family law clients often ask “my son/daughter just turned 18, that means I can stop paying child support right?” The family lawyer’s first response is “no, not necessarily” and then the follow-up question is invariably posed: “is your child still in school?”
Typically, if the child has reached 18, but remains in school, then child support will still be payable. However, it would be an error to limit the question to whether the child is still in school. While determining child support for adult children may often seem straightforward on the surface, actually navigating the relevant legislation, the Child Support Guidelines, and the applicable principles in the case law can be confusing.
The following are some of the key questions and considerations you should ask yourself when trying to determine whether child support can be terminated for an adult child, and how to go about actually getting that done.
What is the relevant legislation that applies to my situation?
In the case of spouses who were married, child support is governed by the Divorce Act and the Federal Child Support Guidelines. Where the spouses were common law, the Family Law Act and the Provincial Guidelines will apply. The different requirements of each Act can often lead to confusing results. Under the Family Law Act, a parent has an obligation to support a child who is enrolled in a full-time program of education. Under the Divorce Act, however, a parent must support a “child of the marriage,” which is defined further as a child who is “unable, by reason of illness, disability or other cause, to withdraw from [the parent’s] charge or to obtain the necessaries of life.”
“Child of the Marriage”
Often referred to as the “Farden Factors,” the following considerations may apply when determining whether a child remains a “child of the marriage”:
- 1. Whether the child is in fact enrolled in a course of studies and whether it is a full time or part time course of studies;
- 2. Whether or not the child has applied for, or is eligible for, student loans or other financial assistance;
- 3. The career plans of the child, i.e., whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;
- 4. The ability of the child to contribute to his own support through part-time employment;
- 5. The age of the child;
- 6. The child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;
- 7. What plans the parents made for the education of their children, particularly where those plans were made during cohabitation; and
- 8. At least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.
Further, while child support under the Family Law Act may immediately terminate when the child completes school, under the Divorce Act, the courts have often permitted a grace period even after the child has completed post-secondary education.
Do you have a separation agreement or court order?
The terms of your child support obligations may also be governed by either a separation agreement or a court order. Often this document will specify the circumstances in which child support will terminate, so after you consult the relevant legislation, be sure to check there next. Have you satisfied all the conditions for termination in the agreement or order? Be cautious of separation agreements that terminate child support, however. People are free to contract for just about anything they please, but child support obligations are one exception to this rule. Even though your separation agreement specifies a terminating event for child support, a court may not uphold that part of the agreement if the court determines that the child would be left in need and unsupported.
Is the child able to contribute to their own support?
The Child Support Guidelines (under both the Divorce Act and Family Law Act) specify that in cases of child support for adult children, the “conditions, means, needs, and other circumstances of the child” may be considered in appropriate circumstances and a child’s budget may be required from the parent, or the child herself, who seeks to continue receiving support. Hence, the ability of the child to support themselves will specifically be considered, but even if support is not terminated, the child’s ability to contribute to their own support may nevertheless justify a reduction in support.
What to do if you think you qualify for a termination or reduction of child support?
The above considerations are not exhaustive and are only some of the more pertinent points. However, if you think you may be entitled to terminate or reduce your child support obligation, then your next steps are again determined by either your court order or separation agreement. Your relationship with your former spouse will also help determine what route to take. If you have a separation agreement and if there is good open dialogue between you and your former spouse, then a written request to the former spouse and simple agreement to terminate support may suffice. Where there is a court order, or the relationship between the former spouses is strained, a motion to change the order may be required and may be, unfortunately, the only means to communicate with your former spouse.
Last but not least, for spouses who have their child support obligations being enforced by the Family Responsibility Office (or “FRO” as it is commonly known), make sure that any agreement or order terminating support goes to FRO’s attention, because FRO will keep enforcing support until they have the proper instructions to cease. FRO can often be slow to process child support orders and agreements, so make sure you begin the process to terminate child support well in advance of the expected termination date. You don’t want to make the mistake, as many do, of thinking that when the child turns 18 or finishes school, support automatically stops.