Is a parent required to pay child support for an estranged adult child?

Child support is often a contentious issue for families, especially when there is conflict between a child and a support payor parent.

In the aftermath of a family separation, a child may assign blame to one parent and resist spending time with them, but what happens if the situation persists, causing a permanent disruption to the parent-child relationship? Is a parent obligated to continue paying child support if their adult children refused contact with them?

Burden of proof

That was the question in a recent case involving an Ontario father who asked the court to terminate his child support obligations based on the fact that his 18-year-old daughter refused to see him or discuss her plans with him.

At the time of the proceeding, the daughter was finishing high school and making plans to attend university with the expectation that she would have her father’s financial support.

The father argued that his daughter’s actions put her “beyond parental control and outside the definition of a child of the marriage,” and that he should be relieved of his obligation to continue paying support.

But the judge did not agree. Under the Divorce Act, a “child of the marriage” is defined as one who is “the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.”

Justice Martin James said the phrase “or other cause” is broadly defined and includes the continuation of the child’s education well into their 20s and that in most cases, disruptions in the parent-child relationship have complicated and multi-faceted causes.

“There is nothing in the Divorce Act or the cases decided pursuant to the Act that says a child must get along with a parent in order to be entitled to support except in extreme situations,” the judge wrote in his decision.

Child support obligations

When it comes to a parent’s obligation to support their children, the law is clear: Every parent has a legal duty to support their child — whether it’s a biological child or one for whom they stand in place of a parent — who is under the age of 18 or enrolled in a full-time course of education.

If they are over the age of 18, and working full-time, they may not need to be supported. However, if they are pursuing post-secondary education, there may still be an obligation to continue support, depending on the family’s financial circumstances. For example, if the child didn’t qualify for student loans and the parents have the ability, they may be required to contribute to educational expenses.

Throughout Canada, the amount of child support is determined by way of a standard guideline and is based on a parent’s gross annual income and the number of children. If there are extraordinary circumstances — special education, daycare, tutoring, extracurricular activities and so on — parents are to share the expenses in a percentage split based on gross annual incomes.

It should also be noted that in Ontario, we have a 40 per cent rule: If the non-residential parent spends more than 40 per cent of the time with the children, that parent may seek permission to pay an amount that is less than the guideline, depending on the circumstances.

Exceptions to the rule

Unfortunately, there are cases where an older child, of their own volition or through encouragement, becomes estranged from one parent. If the parent-child relationship has been fractured beyond repair and the support payor can prove they had no role in its demise, there may be grounds to argue for relief of support obligations.

The burden of proof required to establish that a child has unilaterally terminated their relationship with a parent for no good reason is high. These cases, often referred to as “parent as wallet” cases, turn on evidence.

Relieved of duty to pay child support

In 2017, a British Columbia court found that a daughter had effectively terminated her relationship with her mother and that the child’s “unilateral decision to completely exclude her mother from her life is not explained or justified.”

For years, the daughter refused all contact with her mother and gave no explanation for her antipathy and rejection of a relationship with her. In this case, the judge allowed the mother to terminate support for her daughter.

“I find that she is no longer a ‘child of the marriage,’ and that consequently, the respondent is no longer obliged to pay support or to contribute to s. 7 expenses,” the judge wrote in his decision.

In 2018, an Ontario court was also asked to determine whether a couple’s 25-year-old daughter should continue to be viewed as a child of the marriage, and as such, entitled to support.

In that case, the court highlighted that economic dependence is the essential feature of whether a child is under a parent’s charge. Pointing to the fact that the young woman had arranged for a loan to cover the cost of attending medical school in the Caribbean, the court found she had withdrawn from her parent’s charge and was no longer a child of the marriage.

Two years later, in 2020, the Supreme Court of British Columbia relieved a father of his obligation to continue paying child support for his two sons, aged 19 and 21, finding that both had chosen to terminate any relationship with their father despite ongoing efforts by him.

“While the evidence strongly supports a finding that the reason they did so was the respondent’s conduct in alienating them from their father, Nicolas and Mathew are now adults and their continuing unwillingness to have anything to do with the claimant or even engage in communication, using him simply as an “open wallet”, is a factor that cannot be ignored,” Justice Gordon C. Weatherill wrote in his decision.

If you would like legal advice on your options for varying a child support order, schedule a consultation with one of our experienced family law lawyers. We would be happy to help you.

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A cooperative spirit helps co-parents avoid holiday conflicts

It can be challenging for divorced parents to work out a parenting schedule at the best of times, so unexpected last-minute scheduling conflicts during an already hectic holiday season can create additional stress for the entire family, says Toronto family lawyer Gary Gottlieb.

The emotional aspect of holiday celebrations contributes yet another complication, especially when a divorce is recent, and the children are still getting used to their parents’ separation.

But there are ways to handle scheduling conflicts during important holidays and other special occasions that will ease the stress and create new traditions that work for everyone involved, says Gottlieb.

Don’t sweat the small stuff

Figuring out where and how children will spend the holidays can be complicated, but there’s really no magic to it, he says.

“It’s all based on cooperation. My advice to my clients is don’t sweat the small stuff. A kid never objects to having two Christmases or two birthday parties.”

If you and your ex can spend the holiday together without tension or conflict, you might decide to share the special moments, writes Ann Gold in a recent column.

“However, if your children pick up on your discomfort, it will spoil the festivities for them. Despite your best intentions, your stress could add strain and tension to your kids’ experience. Sharing the holiday only works for parents who are quite comfortable with each other, and not in conflict,” says Gold, author of The Parent’s Guide to Birdnesting: A Child-centred Solution to Co-parenting During Separation and Divorce.

Common types of arrangements

Parents should strive to be creative in dividing time with their children on special occasions such as holidays and birthdays and try to plan months—even years—in advance. Each should think about what’s important to them and how they want things to unfold. For example, one parent could celebrate with the children on New Year’s Eve and the other could spend New Year’s Day with them.

With younger children, Gottlieb says, many parents opt for a schedule where the kids spend the morning with one and the afternoon with the other.

“For older children, the most popular schedule for this time of the year is Christmas Eve and Christmas morning with one parent and Christmas afternoon and Boxing Day with the other parent,” he says.

On the other hand, if a family likes to travel during the holidays, splitting the day won’t work, “so you need to decide whether you’re the type that stays in town all the time to be with family or whether you travel,” he says. Families that travel can look at the option of doing one week on, one week off and then alternate in even and odd years.

“Some people find it more important to celebrate Christmas Eve, some prefer Christmas morning, and some have mixed traditions.” If the parents come from different religious backgrounds, “I usually advise my clients just to go by their own traditions,” says Gottlieb.

Give advance notice for travel plans

If one parent plans to take the children out of the province for the holidays, they must give advance notice, including details of the trip, location, and contact and ticket information. COVID-19 is complicating things even further now since some parents are opposed to their children travelling at all because of government recommendations against it.

A well-organized parenting schedule normally has the Christmas break sorted out by the end of September or the beginning of October, but sometimes, one parent wants to change the existing agreement a week or two before the holidays.

Gottlieb says the courts will usually deal with these matters if there’s an existing specified schedule and one parent wants to intentionally breach it, but it must be proven to be urgent. Last-minute applications are often rejected if the parties can’t show that they attempted to deal with the matter earlier.

Parenting plans should be detailed

When a parenting schedule is very general, it leaves room for debate and conflict between the parents, Gottlieb stresses.

“Rather than stating that the kids will split time over Christmas, the plan should precisely spell out which days and hours apply to each parent,” he says.

Gottlieb recommends creating a very detailed schedule that covers dates, times, pick-ups, drop-offs, and locations. And it doesn’t have to be carved in stone.

“If you’re finding that a schedule is not working, you can always tweak it, on consent,” says Gottlieb, adding that flexibility and an ability to compromise can help the process immensely.

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When children need a legal advocate

Throughout the pandemic, Ontario family law courts have been inundated with cases of separated and divorced parents clashing over what’s best for their children. Judges have heard hundreds of cases with parents at odds over where their children should live and whether they should attend school in person or do online learning.

Most cases the courts heard over the past year involved disputes over parenting, reports The Lawyer’s Daily.

“Approximately 70 per cent of the 506 cases involved only a parenting dispute, and an additional five per cent involved both a parenting dispute and an economic dispute” over property, child support or spousal support, the online legal news outlet reports.

Often in high-conflict cases, it can be difficult for the court to determine what a child wants or needs. Mom says one thing; Dad claims the opposite. In these cases, one or both parents can ask the court to appoint a lawyer who will represent the child and determine their views and preferences. Every year in Ontario, the Office of the Children’s Lawyer (OCL) assists children in more than 10,000 cases by appointing a lawyer whose job is to act as counsel to a child.

This post will give readers insights into how the process works and why it’s an effective method for assessing a child’s viewpoint.

How the OCL works

The OCL typically gets involved in cases where a child is experiencing significant difficulties as a result of conflict within their family.

I’m a panel lawyer for the OCL and frequently represent children in cases where their parents are in conflict as well as in child protection cases involving the Children’s Aid Society. As counsel for the child, my role is to formulate a position as to their views and preferences on the issue in question, which will ultimately be articulated to the parties and the court.

A common scenario where a children’s lawyer can be helpful occurs when each parent claims the child has told them they want to live with them full time. It’s not unusual in divorce for kids to tell parents what they think they want to hear, but that’s often entirely different from what the child believes.

As their legal representative, my job is to get to the heart of the child’s views and preferences, which can be challenging because, in many cases, there has been a great deal of influence on their thinking by one or both parents. The process can take months or longer and involves multiple interviews with the child. It takes time to establish a safe space where they can express their truth. And they must voice consistent views over an extended period.

In child protection cases involving the Children’s Aid Society (CAS), the children’s lawyer acts solely for the child, not their parents or guardians or CAS. As in other matters, our job is to consider the child’s views and preferences, within the context of other relevant factors, and present that to the court.

Fact-finding mission

The questions I pose and how I ask them will look quite different for a six-year-old versus a teenager. Younger children tend to speak openly once they get comfortable, but it usually takes more time to build rapport with older kids.

In cases involving a dispute over where the child will live, it might seem like a good starting point to ask the child directly, “Who would you rather live with: Mom or Dad?” but that’s not effective. Instead, I’ll ask questions that help me better understand their comfort level in certain situations: “What do you enjoy doing most with Mom?” or “How many sleeps in a row are you comfy with at Dad’s place?”

I also review the child’s report cards and assess any special needs they may have. To make informed recommendations about a child’s future, it’s important to gather information from as many relevant sources as possible: the parents or caregivers, educators, doctors, mental health professionals and others. The information gleaned during these discussions helps in two ways: It informs the conversations I have with the child and it puts their views and preferences in context.

Understanding the child’s preferences

I’m currently representing a 14-year-old boy who’s experiencing such a high degree of pandemic-related anxiety that he doesn’t want to attend school in person. One parent supports his choice; the other is opposed.

My goal, in this case, is to clearly understand the boy’s views and preferences to see how we could craft a plan that keeps his anxiety at bay while making sure he’s getting a quality education and maintaining a social life.

These cases are tough but very rewarding. Any time you can encourage a frightened and anxious child to speak their truth, it’s time well spent.

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