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What if your child is taking longer to graduate high school and the payor spouse does not want to continue support- what is the reason behind it? Is there a significant learning disability preventing him from motivating himself or from allowing him to be successful the first time around? Get this child assessed. This assessment may be necessary if you want to prove to the other parent or, in some circumstances, to the court, that the child cannot do it at regular speed. If an in-school assessment can be done in a timely manner speak to the school. If not, have a private assessment done and ask the other parent to share the cost. If the payor feels the child is no longer a child due to age and non-attendance at school, they will not agree to pay support. It appears that some judges will not order support, even when earlier assessments have shown the child to have a moderate to severe learning disability.

Armed with the information of a specialist, the other parent may agree to continue support until high school is completed, even if the child is 20 years old or older, or perhaps the court might make the order. If the child then continues on in school, finds his niche, the payor should continue or resume his payments.

Undoubtedly some disabilities will be more obvious. There is case law to support ongoing child support to much older children in certain circumstances. This can often be agreed to by the parties. A recent case ordered child support to a mother who needed to help with the day to day care of her 36 year old son with Asperger’s Syndrome. Each child is different and may have different requirements as he or she ages.

My message today however, is about the approach taken in court, the Act upon which you, as a litigant, will rely. There is a broad distinction under the Family Law Act and the Divorce Act regarding who is entitled to child support. In the case of a disability, illness or otherwise, requiring support from a parent due to an inability to provide the necessaries of life, the Family Law Act does not compel a parent to pay. The Family Law Act provides that there is an obligation to pay support to the unmarried child who is a minor or is enrolled in a full time program of education.

Unmarried spouses must claim under this Act. As such, the child must be in full time attendance at school, however defined, given the child’s particular circumstance, and not so entitled under other circumstances. The Divorce Act, however, for parties who are or were married to one another, is much wider in its scope and the child under disability is entitled to support. The Divorce Act states:

2. “a child of the marriage” means a child of two spouses or former spouses, who, at the material time,
(a) is under the age of majority and who has not withdrawn from their charge, or
(b) 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.

While married or divorced parties may claim under either act, they must be mindful that they will not be able to claim for a child with a disability, illness or other cause (where they cannot withdraw from parental control or are unable to provide the necessaries of life) under the Family Law Act. Where there are no property issues, parties may opt to claim under the Family Law Act, allowing them to appear in the Ontario Court of Justice rather than the Superior Court of Justice, but will therefore be prevented from making this claim. Be wary and speak to your lawyer about this specific issue, prior to issuing any Application.

Thank you for taking the time to listen to me today. My name is Anna Troitschanski and I am an associate with the Feldstein Family Law Group. If you have any questions about making an offer or any other issues, please contact the Firm at 905-581-7222 to schedule an initial consultation or visit our website.