Termination of Child Support
Child support orders with a specified termination date
Most child support orders filed with the Family Responsibility Office (the FRO) do not have specific cut off or termination dates set out. In those rare circumstances when the date of termination of child support is specified up front in the Order, the FRO Director will stop enforcement when that date has passed. Otherwise, there are only two ways to stop the collection by FRO -- secure the agreement of the recipient OR obtain a Court Order ( Motion to Terminate ).
In cases where you think there is a possibility that the recipient will consent, send a Notice of Terminating Event to FRO. The form is available at www.thefro.ca under Forms. However, if there is more than one child covered under the Order there is not much point trying to terminate the order for one child at FRO because the support order is likely " global" - no amount is specified for each child. A return to court is almost inevitable in this situation.
Child support termination under the Family Law and the Divorce Act
In cases when child support termination date is not specified in the support order, determining termination of the support is directly related to the way the law - the Family Law Act or the Divorce Act - defines a child's eligibility for support.
Under the Divorce Act, a child is defined as a child of the marriage. A child of the marriage legally means the child of two spouses who at the material time:
- is under the age of majority (under 18 in Ontario) and who has not withdrawn from their charge, or
- is at the age of majority or older and under the charge of one of his or her parents but unable to by reason of illness, disability or other cause to withdraw from their charge or obtain the necessities of life.
Under the Family Law Act in Ontario, child support is limited to someone under the age of 18 or over the age of 18 and in a full time program of education.
It is generally accepted that a child who is pursuing post secondary education is unable to withdraw from parental charge and as such qualifies for support. There is some suggestion that the Family Law Act obligation is somewhat more restrictive than the Divorce Act obligation because the child must be in a full time program of education.
There are numerous decisions of the courts struggling with the child support termination date issue with respect to children who are in post secondary school education. Although a specific case analysis is required and no definitive rule is applicable on this issue, the courts have been flexible in these cases in giving latitude to children who are pursuing their education in a good faith manner and have had some difficulty attending "full time" in that pursuit.
These cases are all difficult to settle or predict and often create difficulty when the FRO is enforcing the existing Order and the payor is of the view that the child no longer qualifies for the child support. The FRO has a duty to continue to enforce the existing order until such time as that order is changed or the parties agree that the support obligation has terminated.
If the parties to a support order filed with the FRO agree on the termination of the child support, each of the parties shall give notice of the termination of the support obligation under the Order. If there is a dispute between the parties as to whether or not your obligation has terminated, it is up to the parties to return to the court that made the Order to have the issue resolved. In the meantime, the FRO will continue to enforce the existing Order.
After child support termination: repayment from the support receiver
If the court finds that a support obligation has terminated, it has discretion to order repayment in whole or in part from the person who received support after the obligation was terminated.
It is important to obtain legal advice in these cases early so that steps can be taken to obtain temporary relief from support enforcement while waiting for the resolution of the child support termination issue between the parties.
Motions to terminate child support
Payors considering motions to termination of child support are often faced with claims for retroactive child support or section 7 expenses when the recipient is asked to terminate the obligation. Failure to pay child support in accordance with income will be addressed when the payor seeks to end the payments. Complex legal and evidentiary issues are often encountered at this stage of the process.