A recent Ontario decision considered the question of when a party’s obligation to pay child support may be deferred for a period of time.
The parties had dated briefly. During this time, the mother became unexpectedly pregnant. The parties had one child, born in November 2016.
In June 2017, the parties entered into a consent order that granted the mother sole custody of the child. The father was granted access in the sole discretion of the mother.
To date, the father had not taken any steps to forge a relationship with the child. The father had also not paid the mother any child support.
The Mother’s Motion
The mother brought a motion seeking an order for child support, claiming that the father was intentionally unemployed or underemployed.
The father argued that he was incapable of working. He also claimed that because his plans regarding education would benefit the child in the long run, any obligation to pay child support to the mother should be deferred until he completed his education.
The Legislative Framework
According to section 31(1) of the Family Law Act (the Act), every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who is:
- a minor;
- enrolled in a full-time program of education; or
- unable by reason of illness, disability or other cause to withdraw from the charge or his or her parents.
Section 33(7) of the Act also provides that an order for child support should recognize that each parent has an obligation to provide support, and apportion the obligation according to the Federal Child Support Guidelines (the Guidelines).
In this case, the court concluded that the father had an obligation to pay child support in accordance with the Guidelines.
The Court’s Decision
The father argued that he had made a number of attempts to find gainful employment, but that he had not been successful at finding or maintaining a job.
The court took note of a health status report, which indicated that it was very difficult for the father to perform in work or an academic environment, and suggested that the father’s “future plans” ought to include counselling, a support group and vocational rehabilitation.
The father proposed that his child support obligations be deferred for the next several years, as he obtained the necessary educational foundation, including finishing a “Small Business and Entrepreneurship” program and a marketing program. Since the father would be finished his programs in 2024 or 2025, he suggested that he would begin paying child support in 2026 or 2027 (to enable him to get his business up and running).
The court found that, at the present time, the father’s health needs reasonably precluded him from any gainful employment. However, the court noted that the father could not be relieved of his child support obligations until the child reached possibly 11 years of age.
The court concluded that, at best, it was uncertain whether the father would actually achieve success and graduate the small business program or the marketing program. Even if the father did graduate both programs, the court questioned whether the father would earn meaningful income as a self-employed marketer. In the end, the court found that the father’s educational/self-employment aspirations were not consistent with the medical/mental health evidence.
The court returned to the father’s health status report. In line with the recommendations for future plans, the court decided to defer the father’s child support obligations for one year, with the expectation that he would engage in counselling and vocational rehabilitation.
In Ontario, child support is determined based on the Guidelines and is payable to the custodial parent. Generally, child support arrangements are straightforward when handled correctly. However, variables such as claims of financial hardship may complicate child support cases. It is important to obtain legal advice about child support early in the separation process in order to ensure you understand and protect your legal rights.
If you have questions about child support, or anything else pertaining to separation or divorce, contact Gelman & Associates. Our knowledgeable, results-oriented lawyers seek to empower clients to make informed decisions following the breakdown of a relationship. In addition to our firm’s handbook on separation and divorce and numerous web-based resources, all prospective clients are given a comprehensive family law kit during their initial consultation, with detailed information and resources to help individuals understand and navigate the separation and divorce process.
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