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"Child Definition" under the Divorce Act

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  • "Child Definition" under the Divorce Act

    I live in Milton Ontario, and have a question regarding the "legal" definition of a "child" under the Ontario Divorce Act and Family Support Act. I am hoping someone can clear this up for me, since I am getting mixed feedback.

    Under the Acts, a "child" is defined as;

    ================================================== ======

    Under the Divorce Act, a child is defined as a child of the marriage. A child of the marriage legally means the child of two spouses who at the material time:
    • is under the age of majority (under 18 in Ontario) and who has not withdrawn from their charge, or
    • is at the age of majority or older and under the charge of one of his or her parents but unable to by reason of illness, disability or other cause to withdraw from their charge or obtain the necessities of life.
    Under the Family Law Act in Ontario, child support is limited to someone under the age of 18 or over the age of 18 and in a full time program of education.
    ================================================== ======

    For the past 2 years my daughter, who is now 17, has been living with her grandparents (ex-wife's side of the family) and not with her custodial mother (who has re-married). During the prior years (before she got re-married) my ex-wife lived together with her parents and my daughter, as well.

    Personally, I think this negates the first definition of a "child", doesn't it? Since the child has "withdrawn" from the custodial spouse's charge. Now that my ex-wife has remarried, she is living in another city and has left my daughter behind with her parents. My daughter's school records show her grandparents address as their contact address?

    I am still making child support payments directly to her mother via the FRO, it seems wrong that the money is not going to my daughter? My ex-wife has started up another life, left our child behind and is still receiving my payments, doesn't this sound a little like "fraud"??

    My question is, since my child is no longer under my ex-wifes "charge" what legal rights do I have in order to either redirect the payments to my daughter directly, or request to stop the support payments all together?

  • #2
    You are correct, but you will have to go to court and get a motion to vary.


    • #3
      What would you think the chances are that the support payments would be redirected to my child's grandparents over having the payments stop?

      Do you see any other possible outcomes, I've come up with these;

      -> go to court, have the support payments redirected to my daughters grandparents. Possibly have the courts increase my support payments (my current support payments are based on pre-1995 Support rulings)

      -> have the support payments stopped by FRO and I can support my daughter personally, as required.

      -> leave everything as it is now and hope that my daughter is seeing some of my support payment.

      Since I've been so inter-twined in this mess for so long it is hard for me to see the forest from the trees, I'd appreciate anyone else’s experiences and thoughts on this matter.


      • #4
        The grandparents would need a court order to use FRO. For this afaik they would need custody.

        They won't get custody without it somehow involving your ex as respondent.

        You are better off getting an order that the child is no longer under the charge of her mother. Append to the application for the order an affidavit from the grandparents that they have the child residing with them on a permanent basis (at least until she finishes school etc.) Include an affidavit that you are agreeing with the grandparents to pay an equal amount of support directly to them.

        You would be sidestepping the issue of custody, essentially you are treating the daughter as an independant adult but agreeing privately to keep providing support. This would be necessary to get the grandparents onside, so they sign the affidavit of her residence with them.

        This is just my personal opinion, I am not a lawyer.


        • #5
          Hi Mess, thank you for your feedback! I was hoping not to have to deal with the grandparents, since there were a major contribution to why my ex-wife and I split up in the first place ....

          Anyway, are there any lawyers out there with any further recommendations?


          • #6
            I'm not a lawyer but rather a Dad and parent. As such, my children didn't come with any manuals or reference material - but I did have to learn this manual:

            Children's Law Reform Act 1990, c. C.12.

            Children's Law Reform Act, R.S.O. 1990, c. C.12

            Good definition of "child"


            • #7
              The definition of a child under the "Children's Law Reform Act" doesn't say very much?

              "A reference in this Part to a child is a reference to the child while a minor. R.S.O. 1990, c. C.12, s. 18 (2)."

              What determines a "minor", is this not under the age of 18 year's old?


              • #8
                I end this post with this first line - read through it and it may make sense and it may not - it is, i admit, although not technical, a very different way of looking at your issue. But I am sure in the end what you want (and anybody faced with paying CS) is your CS money to go where it belongs - to help YOUR child.

                I really believe that the technical version of what is a child has been presented extremely well but the real issue, I believe, is not the definition at hand but what is your CS being used for - which is something my very good friend fell victim to. My friend paid his support and for his efforts was denied his right to visitatation and the rest although he did have a court ordered access (the typical ex who has become a pro at twisting the rules and the system - always staying just one step of the courts) - to the point of this post, he discovered that the support he was paying was not going to "benifit" the child but instead was redirected to the purchase of a fine and fancy new car. His plee to the court was just that and for the readers here, he won.

                The court decided to have his ex return to him the CS he had given her on the basis that indeed she did not use it for the direct benifit of the child and the next step was the kicker. Although she had full custody, and the petition did not adress this point, the court decided that in the best interest of the child the custody was changed to 50/50 split and that CS cease as both parents had the capacity to care for the child.

                This seams off the mark in your case except for the fact of - how did my friend prove to the court that the funds were not being used in the intent that the laws dictating CS demanded. My friend had fallen ill and as a result fell behind in CS and he ended up paying her all arears at once when he recieved a fairly large sum of money. The next day she went out and bought a new car - cash. The good part of this particular story was my friend put those $24000 dollars, back then, in his child's educational trust fund and 20 years later (four years ago) had funds to put her through University.

                So how may you change how you are thinking (great english!) and instead of trying to prove or change what I think you will have a very hard time doing and try thinking on what is your ex actually doing with the CS you are sending? Perhaps there may be a similar pattern in that your ex is not sending the CS to your ex-in-laws? In the end, what you are trying to do is make sure the money you are sending is used for your child's benifit. Perhaps there may be an angle that can be used based on your child's current official address - and could your ex's bank record's be suppenaed (spelling?) to the court which would have to show record of transfers of funds in kind, i.e. matching your CS payments to the adults to which have the "possession" of your child at the current time.

                The last thought I do have (if my memory serves me) is the reason your child is liviing where she is now is to remain in her current school until graduation - and that IS in the best interest of the child.


                • #9
                  Hello ddol1,

                  Thank you very much for sharing your friends story! This along with your suggestions have started to turn on some light bulbs ...

                  I do still have an unanswered question though, how long (after the age of 18) can CS payments go on? Lets say, hypothetically, that a child does very poorly in school, doesn't get their high school diploma and is prone to laziness. They try to obtain their high school diploma for a few more years, never get it and does work "under the table" all the while someone is still collecting CS payments. This could be a very revolving lucrative scam from year to year. There must be a "cap" age where a child is considered an adult, and unless they have a physical/mental ailment, should no longer be eligible for CS?


                  • #10
                    Hello #99!
                    Again a long post to which I struggled to get the words out but it does explore the options that can make a difference to your child. Hope it helps - I'll check back to see how this string evolves. Regards.....

                    I have asked this very question and researched to find the right answer. For me it is a slightly different twist. My kids did not ask for this and I know the change will be disruptive and the unknowns are well in my opinion begining to take their negative effects. I am told I am wrong in that my kids are older and they can take of their own business. I want the solution of our divorce to not forget my older kids and i if nothing else for all the things I could not give them in my situation - to get them educated and to do that they will need to sadly chose between mom or dad as there just isn't enough cash money to do otherwise. But I want the decision to include the best solution for the kids and the money coming from the sale of the house if nothing else.

                    So direct to your question - You are fully within your rights in what I am offering and in doing so I hope you can work with and encourage your child to escape from the failure pit you are describing. There is a very high chance that your child's difficulties are a direct result of the years in which your marriage was "breaking down" and by the very nature of divorce. Nobody wins in divorce and it looks like your child is at the bottom of the outcome. Your job as a parant is to change your child's outlook, environment, custody arrangements - this is no longer about who has custody or child support dollars - it is about the most important thing in your life. Your child's future.

                    There is a statement that spouses or one spouse comes in on the short end of the stick - in this case maybe it is one spouse who has not worked in 25 years. There is an expectation for the spouse to take the steps required to make it on their own and in turn have the SP come to an end. Just thinking about that really brings to the light of how complex the area of Family Law is. So like the spouse, the child is expected to have a plan to obtain the education he/she deserves and the child is expected to reach that goal in a set amount of time or better yet in a reasonable time frame. Every case is different and you need to look at your child's difficulties perhaps in a different way. I am stretching out here as I am just a conserned parent who by far has no right to offer a solution here but this message has been getting your frame of mind in a different plane so here goes!

                    Your child needs to have the proper living arangement that encourages sucess, encouragement and possible tutoring? One difficulty that will need to be over come is your child's age and past history of failure. It is all about getting that education that is maditory to do well in our society or accepting that maybe you will have to pump gas all your life. Next you need to look at the school your child is attending - is it the right one for your child? You need to look at your child yourself. Some kids just don't get it and there are alternative programs available in the technical area, hands on type of learning and hopefully a field that suddenly everything changes for the better and your child finds his/her calling. I understand the dynamics of the act of divorce, divided spouses and what the parents can do to each other - often the kids pay the price so both you and your ex need to get on the same page for the good of your child and I beleive that is what everyone wants but in practice is so difficult to achieve. But your child is depending on you.

                    So how long is reasonable for CS to continue? A tough question at best - but it hinges on the efforts you as parents put forth and the child - if the child doesn't change it around and the court sees that you the parent have really tried everything to help your child pass the education path you have set forth, the CS will be allowed to end. I think the key here is if you can't get it together with your spouse (sorry I am not used to the term EX spouse yet!!) ex spouse to try and help your child change then I can see that your appeal to the court will be heard and the CS will be stopped. I feel for your situation but like my previous post there is a moral to this story and YOUR child's sucess and future depends on everyone to work harder than ever.

                    Another thing that my lawyer said to me may help - the court looks on young adult children as just that and the expectation is for the young adult to take care of themself without parental aid mandated by the court. So assuming there is no mediating circumstances like a disability that hinders the child what education is enough? Is it high school, trade school, college, university, MBA, Phd....... a welder, mechanic, a doctor.... Well I was told the level of education is based on what plans were there on the day divorce was declared.

                    If your child was planning and working towards or preparing for some form of education direction then usually this is what the court would try to continue. I believe this is where the phrase "status quo" is what I hear over and over from the lawyers. Directly to your question of how much education there is the statute in the Family Law that declares education is not a continuous never ending situation which I think the intent is there is no "professional" students who never stop going to school and no continued failures and second, third, forth.... attemps to achieve one's goal. Sadly, what your child is in really is a delema for all involved. A pattern where failure, dispare and futility are your child's reality and it is your job to put an end to "endless" CS and more than money - save your child from jail or worse.

                    I must admit it is now three hours (and three crashes with my fingeers at the keyboard)) I have been at this post! Aghh it takes me so long to do things it drives me....... but I help myself while I help others so with that I sign off hoping this was worth your time to read. Good luck to you and your child - it will be a long hard road.


                    • #11
                      Hello ddol1,

                      Wow, thank you so much for sharing your thoughts, I, and I know the rest of the people reading this thread, greatly appreciate the input!

                      I completely agree with everything you stated, especially doing everything that you can to support your child through adulthood, in order to give them the proper skills to be able to contribute to our society. Unfortuantely, as sad as it is to say, and how much I have tried through the years, will not be doing very well in this particular area. Her mother and I divorced when my daughter was very little (2 years old). So, I cannot attribute any negativety to the divorce, since she has no surface impairment from this event. Through the many years the toll has been taken on my relationship with my daughter, unfortunately, her mother has succeeded in deminishing any of my attempts to aid her in education and any other life skills I have been trying to promote. It is actually a very sad state of affairs between her and I, to the point where I no longer have a connection with her. Her mother, as well as the ex-in-laws, have done nothing but try to put a wedge between her and I, I have fought this for many years. Now that she is older, the preaching that she has been exposed to through the years is showing very strongly. She has no intent on associating any of her time with me.

                      Ok, so enough about that, my situation now, is that I have no contact with my daughter nor with any side of her mothers family. This is where my point of the question comes in, how long can the CS payments go on? My daughter has no interest in education nor any interest in contributing to society, basically she has no interest in working, nor is she being pushed. She will not be getting her high school diploma, I can see her going back to "attempt" to get it, in order to continue the CS payments. With her being over 18, I now can no longer request her school information. I have been totally shut out of any information about her an her activities. So, in my mind, what signifies the end of the CS payments? Hypothetically, she could continue this role until it becomes "status quo" then I could be paying for her to be sitting at home until who knows when? "A", I love my daughter, but I have a hard time being able to support this lifestyle. Since she turns 18 later this year, I would like to be proactive and submit the FRO "Seize payments" form on the basis of she is no longer a child of the marriage (I don't have anymore proof than that), if that fails, I will have to submit a change to the courts of my divorce papers and leave it up to the judge to determine the next steps. I'd rather not drag this through court. for everyones sake, but I know that the other side will be pushing to continue the CS payments. I feel as if I am between a rock and a hardplace, as I am sure most everyone else on this forum is feeling, our whole system for this really sucks!


                      • #12
                        Does anyone have any feedback on their experiences (hopefully successes) with filing the FRO "Application To Discontinue Support" form?


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