No child support owed for adult sons not attending school

Material change in circumstances justifies varying interim support order, Ontario court finds

No child support owed for adult sons not attending school
Ontario Superior Court of Justice considers whether child support obligations should be terminated.

The Ontario Superior Court of Justice recently ruled that an adult child cannot indefinitely postpone starting post-secondary education and expect to still be considered a dependent who is entitled to parental financial support.

In Edwards v. Edwards, 2021 ONSC 1550, the parties married in July 2000 and had two sons, the first born in October 2000 and the second in November 2001. The parties separated in June 2017. In May 2018, the respondent mother was granted exclusive possession of the matrimonial home and the children started living with the applicant father.

Effective May 1, 2018, the mother agreed to pay child support of $2,241 per month for the two children, pursuant to an interim order. In the present motion, the mother sought to terminate her child support obligations retroactive to the sons’ eighteenth birthdays, when neither son was enrolled in an educational program.

The Superior Court of Justice of Ontario terminated the mother’s monthly payments of $2,241 for child support. For the elder son, the support obligation ended on Dec. 31, 2019, considering that the fall term of the college that he briefly attended ended in December 2019. For the younger son, this obligation terminated on June 31, 2020, which was the end of his gap year following his high school graduation in June 2019.

From January to June 2020, the mother’s obligations were lowered to $1,398 monthly, amounting to an overpayment of $5,058, the court ordered. From July 2020 to the date of the hearing on Feb. 24 this year, these obligations were reduced to zero, leading to an overpayment of $17,928. The court therefore determined the mother’s total overpayment to be $22,986 as of Feb. 24.

The court found that the fact that both sons were now over 18 years of age and no longer in school qualified as a material change in circumstances under s. 17 of the Divorce Act, justifying the variation of the May 2018 interim support order, which was premised on the circumstance that both children were still attending school.

The court accepted that both sons were entitled to take a gap year after their high school graduation in order to decide what they wanted to do, and that reaching 18 years of age would not necessarily make them lose their dependent status.

However, the court found that both sons had decided, as adults, not to enroll in educational programs for the 2020-2021 academic year, and the mother should not be required to pay child support for this period. Neither son qualified as children under s. 2(1) of the Divorce Act as neither had illnesses or disabilities that prevented them from attending school or working for a living.

The court noted that, after the mother had served her notice of motion, both sons were admitted to full-time post-secondary education programs for the 2021-2022 academic year, so the court’s decision would not prejudice the father’s right to apply for child support after the upcoming school year had begun.

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