Overview

This decision addressed the father’s motion seeking to reduce his child support obligations and security of costs. This blog will focus on the issue of child support.

Facts

The parties are married and have four children, three of whom are over the age of majority. The father is seeking to reduce his child support obligation to provide ongoing support for their youngest child. His position was that the eldest three children are presumed to be able to withdraw from their mother’s care and provide for themselves.

One of the children allegedly suffers from “post-concussion syndrome”, however, no medical evidence was provided regarding her diagnosis nor prognosis. She works, attends school and drives a vehicle.

One of the other children has Tourette’s Syndrome and a learning disability. He was accepted into a part-time program at Centennial College which had an attendance requirement of 11 hours weekly. There was no evidence provided any income he may have been receiving, nor medial or employability report.

The mother provided no responding materials for this motion.

Analysis

The court references section 17(4) of the Federal Child Support Guidelines which requires the court to be satisfied that a change in circumstances has taken place before entertaining any variation of the existing support arrangements for children. The court then notes that because the Divorce Act specifically addresses the age of majority as a trigger point for the review or adjustment of child support obligations, it constitutes a sufficient change in circumstances to underpin a variation order.

The court noted that children are presumed to be able to withdraw from parental control at 18 years of age. This presumption can be rebutted by evidence of illness, disability or, most commonly, full-time enrolment in post-secondary education. The court nevertheless appreciates that, in the circumstances at hand, the children may not wish for their father to have detailed information about their lives. However, the court noted there is risk associated with taking this approach, as the court cannot confirm their continued entitlement to child support.

The court prefaced their decision by noting that even if they are wrong and both children continue to qualify for child support, they cannot properly determine whether the table amount is appropriate in the absence of further information. In the absence of evidence regarding the children’s school enrolment, their expenses, their sources of income and any other funds available to them (such as student loans), the court cannot conduct this analysis and therefore cannot make an order.

Conclusion

The court concluded that child support will be varied on an interim basis to accord with the father’s income and the amount payable for one child.