Banting v. Banting: Over-Payment of Child Support
Following their separation, the parties entered into and executed a comprehensive Separation Agreement on October 3, 1995. Pursuant to said Agreement, the Applicant was required to pay child support for the parties' two sons until the children attained 18 years of age and were no longer in full-time attendance at an educational institution.
When the children turn 18, they were enrolled in full-time school, but they missed so many classes that their absences resulted in their removal from their high school. As such, the Applicant argued that missing so much school should be interpreted to mean that they were not full-time students and thus that his obligation to pay child support ended when the children turned 18 years old. Consequently, the Applicant argued that any support paid since the children turned 18 should be refunded to him.
The school records of the children were presented as evidence and illustrated that from their 18th birthday to the end of the school year, the children were absent from school for a cumulative period of 160 days.
The Respondent argued that "full-time attendance at an educational institution" should be broadly interpreted and take into consideration the fact that although the children were not enrolled in a conventional educational institution, they were involved in various "programs" which allowed them to, among other things, explore career choices, learn workplace skills, connect with local employers, and attend math labs.
Justice MacKenzie rejected the proposition put forward by the Respondent.
He stated that generally, the courts will exhibit considerable latitude in determining the availability of child support to a child of the marriage who is over the age of 18 and pursuing an educational plan which might require greater time to complete than would be within the normal parameters or expectation. However, in this case the children were removed from school due to their absenteeism and consequently intentionally delayed the completion of their secondary school education such that they would not graduate, rather they would only be eligible to obtain a GED (General Equivalency Diploma) if they successfully completed the examination for same.
Justice MacKenzie did state, however, that he would have felt inclined to order the continuation of the Applicant's child support obligation if the children's absenteeism, deregistration from high school and academic difficulties were a result, in whole or in part, of the conduct of the Applicant and the dissolution of the parties' marriage. However, no evidence evincing same was ever adduced and consequently Justice MacKenzie ordered that the Applicant was to be compensated in the sum of $16, 596.00, which represented the over-payment of child support for the period from the children's eighteenth birthdays to October 18, 2010 which is when an Order was issued terminating the Applicant's child support obligation.