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Category: Canada Family Law
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Experience:  I am a practicing lawyer and have also been an online professional for 5 years.
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I am a divorced father of one. My current living arrangement

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I am a divorced father of one. My current living arrangement is common law with her three children since 2004. The arrangement was to have my son staying with me every other weekend, while I always paid table child support. A few years into this arrangement, my son expressed he was "uncomfortable" with coming over for alternating weekend visits for reasons I do not know. It has been since about 2007 or 2008 since I've had those visits. He turned 18 in July of 2015. My ex-wife had informed us that he would require another year to complete high school due to being 6.5 credits short of his diploma, so I never questioned it and continued paying child support through the 2015/2016 school year. In the summer of 2016, I encountered difficulty contacting my ex-wife to inquire about my son's schooling status. In August of 2016, I withheld the child support so as to get my ex-wife to finally call, at which time I invited her with my son to our place to discuss the schooling. At that time, my son informed me he was short 4 or 5 credits to obtain his high school diploma. This is when red flags began to raise in my mind. It wasn't until the September following, that I was provided with his school schedule and updated high school transcript which indicated he only obtained 1.5 credits for the entire 2015/2016 school year. The learning institution he's enrolled in, is an alternative school that requires only a two hour classroom attendance per week, per course. He was enrolled in three courses for the 2016/2017 school year, requiring only a total of six hours per week attendance. In October, I commenced a motion to terminate child support. I have been to two case conferences thus far, with a third one scheduled for August of this year, by which time my son will turn 20. According to the ex-wife, he wants to enroll in TWO three-year college programs. She is on ODSP with a $17000 per year income. My income is $82000 per year. She, of course resists any idea of child support stoppage. Past interactions with her have been high conflict on her part, and for this reason, I have tried my best to minimize contact with her. My question? What is the likely outcome of my motion?
JA: Because family law varies from place to place, can you tell me what state this is in?
Customer: Brampton, Ontario, Canada.
JA: Have you talked to a lawyer yet?
Customer: I've only spoken to on lawyer, and three duty counsels thus far.
JA: Anything else you want the lawyer to know before I connect you?
Customer: My current living arrangement is common law with her three children aged 15, 17 (almost 18) and 19. She has almost never received any child support from their father. Only recently, has her divorce been signed off by the courts. My ex-wife has been on ODSP since I part ways with her from the early 2000s. In the event that I am found to have overpaid her on child support, she will be unable to repay the overpayment. But she is also extremely high conflict and unreasonable. During the last case conference, the judge seemed irritated by her conduct.

I am sorry to hear this.

If your son was not attending school full-time support stops. You are entitled to be repaid for all the support you provided and in fact you are entitled to interest and your costs.

Going forward if your son attend school full time and lives at home when not away at school he will be entitled to child support once again.

Does that fully answer your question?

Please feel free to post back with any follow-up questions you may have. If you don't have any then I hope I have earned a 5 star rating but if you don't feel that I have please don't hesitate to reply back and let me know what more I can do to assist you. Finally, please know that even after you rate me I will be here for you and you can ask follow-up questions if you think of them later on at no further charge of course.

Is there anything more I can help you with at this point in time?

Customer: replied 1 month ago.
Hi. Sorry for the delay in getting back to you. Yes, I understand if he's 18 or over, and not attending school FULL-TIME, legally child support terminates. However, the process with which this occurs is what I am unclear about. My understanding thus far, is if a separation agreement specifies a terminating condition/date/event etc. I won't need to go to court. If there isn't a terminating clause in the separation agreement (as in my case), I need to file a motion to have the agreement/order varied, correct? In doing so, either the ex can consent to have child support terminated, or the ex can dispute the motion but if the court rules in favour of terminating child support, she will be responsible for the costs I've incurred in bringing about the motion. This is my understanding of how the process works, correct me if I'm wrong.My question then, is WHAT is defined as FULL-TIME schooling for the purposes of the Divorce Act (and Family Law Act), which I believe is Section 31 if I recall correctly, that brings an adult over the age of 18 into entitlement to continued support? And for how long? From my readings, age is definitely a factor taken into consideration.For more details, please read this thread. Posts #1, #4 and #7 go into greater as to where I stand at present: essence of my motion isn't so much about just terminating child support outright, so much as it is about the lack of accountability on the part of my ex-wife and son in terms of providing information regarding his plans, but also for the fact that his plans seem unreasonable in that he can't work because it will impact my ex-wife's ODSP benefit, according to her. Not to mention, he plans on taking TWO (maybe three???) three year college programs, which will put him at age 23 by the time he completes ONE college program, assuming he completes it on time (which is very doubtful when looking at his marks on his high school transcripts).Lastly, in putting together my next case conference brief, should I be citing case law in the brief? Or should I leave that out? Thus far, these are the case laws I have found that closely parallel my situation: Farden v. Farden, the judge dismissed the mother's application for support to continue. This case has been quite frequently cited from my research. case above has striking similarity to mine. However, The "child" in the case above has documented issues since very early on. My son does not.My concern, more than anything else at this point is that my ex-wife is extremely resistant to the idea of child support stoppage and will do anything she can, to have it continue indefinitely if she could achieve that.

You have to bring a motion to vary, ending the support at least for now. If you don't the other parent could seek to enforce the agreement without notice to you and then register it with the FRO who would start enforcing it.

But for sure ask for consent first and make it clear that if you have to go to court you will then seek an order for your cost.

He has to be enrolled and attending full-time. That is usually 5 course per term but could be 4 in most cases. It cannot be 2 or 3. A court will not say that is full-time because then the kid could be working as well.

You don't need case law for the case conference.

Did I answer all the follow-up questions? If not please let me know. Also, it harms my stats on the site to have a question sitting unrated and so please be sure to rate me now. We can still go up and back of course.

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Customer: replied 1 month ago.
As indicated above, I have brought about a motion to terminate child support, and been through two case conferences thus far, with a third one scheduled for August. The first case conference resulted in my monthly child support payments going to FRO along with a slight increase in quantum (I had not updated the amount due to my intention on filing the motion, as I was unsure if I should have continued paying).The second case conference went much better is because I feel the judge got a much clearer sense of what the motion was about from what I could see. She went in there, asking for money (as usual) for which her request was denied by the judge. When asked if OSAP was applied for, and she replied "no", the judge seemed irritated and ordered her to "get on it".With respect to your last response regarding the number of courses required to be taken in a school year to qualify as full time schooling, since my son took only three for this entire school year that just finished, and only obtained 1.5 credits during the 2015/2016 school year, would it be reasonable to request that I be credited for these two years that have passed, that I've been paying full table child support be applied as a credit to my future obligations going forward, should he begin attending college for the 2017/2018 school year. At what age or date is child support likely to terminate, based upon the information you have so far.Due to my ex-wife's extremely limited means to repay any overpayment or costs, would it be likely that my son would be held jointly responsible? Her position is that because she's on a government cheque, she doesn't care how much costs are incurred to dispute this, as she feels as though the courts "can't touch her" as she puts it.

You should get a retroactive adjustment from the time your child turned 18 and was no longer enrolled in school full-time.

If he goes to school full-time the court would grant support for at least the years it takes to get a first degree.

Your son will not be liable for the repayment but perhaps will be expected to pay more than what kids usually have to pay in terms of their own contributions to school expenses. Generally kids are expected to pay about 1/3 of summer earnings towards school expense. If your son was deceptive so that he could get support for his mother I can see a court ordering more than 1/3.

Customer: replied 1 month ago.
Okay, continuing child support until the completion of ONE college program seems reasonable for which I don't have any objection to. However, what if he either decides to prolong the process of completion (to prolong child support for mom) or outright withdraws mid way through the program, either voluntarily (due to being unable to handle the pressure) or involuntarily (due to being unable to maintain the learning institution's mandated minimum GPA to remain enrolled)? Also, it is not the son who is being deceptive, but rather the mother. She has been evasive, as well as dishonest towards myself, and even the judge too, during the last case conference. What recourses do I have with the above scenarios?To your point about not needing to cite case law, do you mean it should not be submitted in the case conference brief or do you mean it should not be submitted during the actual case conference itself? The reason I ask is because the eight Farden factors seem to be a very good guideline for courts to use, when rendering a judgement.My partner and I are both employed, as well as my partner's oldest daughter. In submitting the Form 13, do I have to list the eldest daughter's income as well as my partner's on the form, or only my partner's? She's employed part-time while taking a "victory lap" to upgrade her marks on some of her existing credits to bring it into University acceptance standards.Even though Form 17 and Form 13 are the only two forms required to be served and filed, would it be wise to submit a 14A as well?

He cannot prolong the process because then he won't be attending school full-time and support will stop.

You don't need any case law for a conference.

You don't include the child's income.

You don't need sworn evidence for a case conference.

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