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COVID and the continuation of child support

Thursday, March 04, 2021 @ 8:41 AM | By Gary Joseph

Gary Joseph %>
Gary Joseph
While the media focus during the pandemic has been on primary and secondary school challenges, college and university students have also been greatly impacted. Some time ago I wrote on the possible unintended consequences of students working from home and the “summer support model.” Of perhaps greater impact on child support has been the interruption of post-secondary school attendance or the abandonment of same (for various reasons, to be discussed) by many “adult children.”

Child support for “adult children” has been and will continue to be a contentious issue. When should it stop? The goalposts have certainly changed during the course of my legal career. When I began to practise we saw support ending at times when children turned 16 years and certainly by their 18th birthday. Gradually courts began continuing support through the “first post-secondary school degree or diploma” and now in many cases support can continue through a post-graduate program. There are social and legal reasons underpinning this evolution.

This past year we have felt the impact of COVID-19 on our lives, our economy and certainly the education of our children. Many post-secondary programs have been cancelled, suspended or deferred. Part-time jobs are almost non-existent and many children have chosen to defer their entry into the world of post-secondary school education rather than do it online. In my view the courts and lawyers in general need to consider all these factors (and I am sure others) when determining the issue of the continuation of child support for adult children. Educational plans have been disrupted through no fault of the child. Opportunities to earn part-time income have disappeared and for many students the prospect of beginning a new level of education online is not possible or desired. In this context and with the acknowledgment that each case is unique, it is important to note that cases of this nature are largely determined on the facts.

For a comprehensive summary of factors the courts consider in determining whether child support for adult children should continue there is no better summary than that of Justice Deborah Chappel in the case of Menegaldo v. Menegaldo 2012 ONSC 2915. Other case law to consider is as follows:

Short hiatus from school does not disentitle child from child support

In Musgrave v. Musgrave 2013 ONSC 7481, where the parties’ older son had completed high school in June 2012 and enrolled in a college Police Services Program commencing in January 2013, the court ruled that the son was not disentitled to support for the period of the five-month hiatus. This was a reasonable period for him to determine what study path he wished to pursue, particularly given that he faced special learning challenges (at para. 39).

Poor academic performance, breaks from school do not disentitle child from child support

In Murray v. Caron [2007] O.J. No. 827, the court held (at para. 20) that if children retain the intention to complete their education within a reasonable time, it is necessary for parents to support them as they continue, despite sporadic breaks in their education. Here, the mother sought a reimbursement of child support that she paid after she said the children were no longer children of the marriage. The court held that the parties’ daughter remained dependent upon the father until she had completed her education at the age of 23. Her education had been interrupted by difficulties with drugs, which led her to take a one-year break from school and work part time. She subsequently returned to school and obtained a diploma. The parties’ son was entitled to support while he attended college full time and for several months afterwards while he looked for work.

While the mother had paid support after the children became independent, she had failed to disclose significant increases in her income before support terminated. The increased amounts that she owed offset any overpayment of support she had made after the children were no longer entitled to support. Consequently, the mother’s motion to vary was dismissed.

Changing programs does not disentitle child from child support

In McGinn v. McGinn [2006] O.J. No. 461, the parties’ 22-year-old son had changed post-secondary courses twice without completion. He was currently in the first year of a four-year program to become an athletic therapist and had apparently found his niche. The court refused to grant the father’s motion to terminate child support. The child was still pursuing an education that he needed to become self-supporting, he had experienced learning problems, and his estrangement from his father, which was through no fault of his own, probably made it more difficult for him to settle on a career choice. He was entitled to support for as long as he was in full-time attendance in his current program (at paras. 16-19).

No cutoff for child support based on age, academic achievement

In Ivany v. Ivany [1996] N.J. No. 266, the father applied to terminate child support for a 20-year-old daughter and a 19-year-old son. Neither child had successfully completed Grade 12. The daughter had repeated Grade 12 but failed supplementary exams she had taken in the summer. She planned to take evening courses to upgrade her credits to qualify for post-secondary dentistry education. The son had not successfully completed his entire Grade 12 courses but was repeating courses that he had failed. He planned to enter the Marine Institute. The court found that both children were “children of the marriage,” and entitled to support. Section 2(1) of the Divorce Act, the court noted, does not provide for any cutoff point based on age or scholastic achievement. It was sufficient that both children had reasonable education plans, and both had shown a serious intent to further their education (at paras. 16-17.)

Earning some employment income, taking short hiatus from school does not mean child not entitled to support

In Mickle v. Mickle [2006] O.J. No. 1151, the court found that the parties’ 23-year-old daughter, who had taken several years off to work following her high school graduation in 2001 but later enrolled in university in September 2004 as a full-time student, was a child of the marriage and entitled to support from her father. The father terminated support when the daughter reached age 18, in accordance with the parties’ separation agreement. Justice Steven Rogin concluded that although the daughter’s part-time employment income was $18,000 while she was attending university, she was not truly self-supporting, as she was still receiving assistance from her mother by way of room and board. The court found that the daughter was entitled to support commencing in September 2004 when she entered a full-time program at university (at paras. 53-64).

There are many more judicial opinions offered on this issue. When arguing in favour of a continuation of child support or when seeking a termination, counsel should, in my view, consider the impact the COVID-19 pandemic has had on the child, the program or the economic prospects of the child. Evidence of this nature should be considered by the court in determining these issues.

Gary S. Joseph is the managing partner at MacDonald & Partners LLP.

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