Parents in Ontario have a positive obligation to support their children under the both the Family Law Act and the Divorce Act. When the children are under the age of majority, the amount of support payable by a parent is simple to calculate as it is based on a Child Support Table. The Table amount of support that a parent is obligated to pay is based on the payor parent’s income and the number of children who are entitled to support. The Table amount of child support generally covers the child’s basic needs.
Another aspect of child support includes “special or extraordinary” expenses under section 7 of the Child Support Guidelines, to which both parents contribute in proportion to their incomes. These special and extraordinary expenses include all the “extra” expenses for the child, such as expenses for some extra-curricular activities, medical or dental care not covered by medical insurance and post-secondary education expenses.
Entitlement: Child Support and the Age of Majority
What about child support and the age of majority? The issue of child support gets trickier when one is dealing with children over the age of 18 years old. Under the Divorce Act, a parent is obligated to continue to support his or her child until the child reaches the age of majority or withdraws from parental care or custody, unless the child is unable to support himself or herself by reason of illness, disability, or some other reason that causes the child’s continued dependence on his or her parents. For example, if the child is unable to work because he or she is pursuing a post-secondary education, then the payor parent might have a continuing obligation to support that child, subject to the parent’s ability to pay.
When dealing with support for children over the age of majority under the Divorce Act, the Court will make a decision based on the facts of each case and an analysis of the reasons behind the child’s continued dependence on his or her parents. For example, if a child has a disability that affects his or her ability to complete a degree within the expected time frame, that child’s parents may have an obligation to continue paying support until that child completes his or her degree.
Under the Family Law Act of Ontario, child support is payable to someone who is under the age of 18 or over the age of 18 years and in a full time program of education, to the extent that the parent is capable of providing support. Furthermore, a child who is sixteen years or older and has withdrawn from parental control may not be entitled to support. In that case, the child who is 16 years of age or older must have voluntarily withdrawn from parental control.
Under the Family Law Act, a child’s enrollment in a full-time program of education may entitle that child to continued support, depending on all the circumstances, including the amount of time the child is spending on his or her studies and how seriously the child is pursuing an education.
Amount of Support – Basic Child Support
Under the Child Support Guidelines, for children who are of the age of majority or over, the amount of support is one of the following:
a. The amount of child support determined under the Guidelines as if the child was under the age of majority; or
b. If the court considers the above inappropriate, the amount of child support is that which the court considers appropriate having regard to the condition, means, needs other circumstances of the child and the financial ability of each parent to contribute to the support of the child.
Unfortunately, the Guidelines do not define what factors the courts should consider in determining the appropriateness of the amount of child support. However, the Guidelines indicate that the child’s particular condition and circumstances as well as the parents’ financial ability will be considered. Therefore, the Guidelines amount of support may be inappropriate if the child has sufficient financial resources and means to support himself or herself or to significantly contribute to the same. Similarly, if the child is pursuing a post-secondary education away from home, the Guidelines amount of support may not be appropriate if the payor parent is also paying the child’s education and living expenses away from home.
Section 7 – Special or Extraordinary Expenses
In addition to the basic child support that parents may be obligated to pay, there are expenses related to the child towards which the payor parent is obligated to contribute. These expenses usually relate to the child’s care, health, education, and extra-curricular activities in which the child is involved. Post-secondary expenses are also included in this category, including tuition fees, books and the cost of residence, if applicable.
Special or extraordinary expenses are usually paid by both parents in proportion to their incomes, after taking into account any contributions from the child, if any. For example, if parent A earns $70,000 per year and parent B earns $30,000 per year, then parent A should pay 70% and parent B should pay 30% of the expense.
Child’s Relationship to Parent
In general, children are entitled to support from their parents regardless of whether the children have a relationship with their parents. However, children over the age of majority who consciously and deliberately refuse a relationship with the payor parent may be disentitled from receiving support from that parent.