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Law Maven
Law Maven, Lawyer
Category: Canada Family Law
Satisfied Customers: 164
Experience:  Lawyer & Instructor at Algonquin Careers Academy
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I live in bc and my daughter is turning 19 next week. I want

Customer Question

I live in bc and my daughter is turning 19 next week. I want to apply to retroactively vary my the child support to clear up arrears and receive the overpayment.If my daughter turns 19 and is over the age of majority I am not permitted to apply to retroactively vary child support because she is no longer a "a child of the marriage".
Submitted: 9 months ago.
Category: Canada Family Law
Expert:  Law Maven replied 9 months ago.

Hello – my name is***** am a Canadian family lawyer, and I’ll be happy to help with your question today.

Unfortunately there is not a simple yes or no answer to this. Primarily it depends on what legal document is requiring you to pay child support.

  • If it's a Separation Agreement of some kind, they often include language that says the support stops when the child completes a first post-secondary degree, for instance, and that means the payor is required to help pay for college or university.
  • If it's a Divorce Order or other Court Order, then it depends on the wording of the Order. Some Orders specify that children are a "child of the marriage" as long as they are still in school and dependent. Others have a more strict age cut off.

If you have the document that sets out your child support payments, and if it says nothing but "child of the marriage" with no other qualifications, then presumably once your daughter has reached the age of majority she no longer qualifies. If she is in school, or planning on going to college, you might want to be a bit cautious about this. When you apply to terminate the support, and clear up arrears and overpayments, your ex could counter apply to obtain support for your daughter's schooling.

If, on the other hand, your daughter has a job and is moving into independence, then you she would indeed no longer be a child.

I hope I have fully answered your question, but please do not hesitate to ask for more information if needed. If you do wish more information, please let me know what the wording regarding the child support is, in the Order or Agreement you have. When you are satisfied with the answer, kindly provide me a positive rating so I can receive credit for my answer.

My answer here contains only general legal information and not legal advice. No solicitor/client relationship has been created by this communication.

Customer: replied 9 months ago.
Hi,Im not concerned whether I have to pay child support after she is 19. She is in university and that is a given.Her 19th birthday is ***** 2 weeks and I am trying to figure out whether I need to make the application to retroactively vary child support before she turns 19 or if it is ok to wait a couple weeks till after her birthday.the divorce order states I pay child support "so long as the child is a child of the marriage as defined in the divorce act".Do you still require more info from me?ThxChris
Expert:  Law Maven replied 9 months ago.

The sooner you make the application, the better. Or, rather, the sooner you state that you want to vary, the better. Once you have made it clear that you want to vary, the Court will look at that date rather than the date you file the documents. So if you send a letter to your ex- telling them that you want to figure out overpayments and arrears and get the Ordered amount varied to match your current situations, then there is no hurry after that. (Although you don't want to wait years...!)

And if you don't have it, the Divorce Act definition is:

child of the marriage means a child of two spouses or former spouses who, at the material time,

Hope that's what you needed.

  • (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;

Customer: replied 9 months ago.
ok, the issue to vary has already been discussed and documented so the date of effective notice is taken care of.I am just concerned if I make a request to vary after hey daughter is no longer a "child of the marriage" the court will say the issue is can't be heard any more because you can't vary child support for a child that is no longer " a child of the marriage".thxChris
Expert:  Law Maven replied 9 months ago.

Hi Chris,

As long as your daughter is in university and not entirely paying her own way she remains a child of the marriage under part (b) of that definition. Specifically, she is still under her parents "charge" (still being financially supported), and not able to withdraw from that because she's in school full time.

If you and your ex are helping support your daughter through university, then she remains a child of the marriage until she graduates. Her going to university is itself a good reason to vary, as her needs will be different, she may have part-time work, or you may pay all or part of tuition/books/ residence/etc. directly to her or to the university rather than to your ex.

So, bot***** *****ne, waiting another week or two, or even month or two, should not make a difference.

Regards,

Anne

I hope I have fully answered your question, but please do not hesitate to ask for more information if needed. When you are satisfied with the answer, kindly provide me a positive rating so I can receive credit for my answer.

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