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Child of the Marriage: Post-Secondary Education Disclosure

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  • Child of the Marriage: Post-Secondary Education Disclosure

    I would like to start off by saying thanks to all those who have provided me some excellent advice and served as a sounding board on several issues. To quote some of you “ this is a long road”.

    I received some excellent news today from the Court Clerk at the Superior Court, they informed me that I can file the Motion to Change at the local Court, as opposed to having to travel 6 hours to/from Toronto to deal with the issues. Apparently, if the child is over 18, and the case is not regarding custody, it can be filed in the location where I reside. So looks like I can go ahead with my Motion to Change and terminate my child support

    I have a few questions, on the next few steps:
    • I have completed Form 15 – Motion to Change, which was simple enough. I have used the same court file number which is on the existing order. Is that correct?
    • I have completed form 14B – Motion Form. It looks fairly simple, but I’m concerned about what to put in the motion box. From what I have read the following should work
    “I am asking the court to make an order in to terminate Child Support effective XX XX XX in accordance with Form 15A dated XX XX XX which is filed with the court along with this motion?

    Will this suffice?
    • I have completed Form 15 A – Change of Information. Relatively simple, and have checked off Para 17 – Termination. Is that all?
    • Do I need to file a form 13 – Financial Statement with this Motion?
    My next question is when and where to I file or submit the supporting documents (letters requesting information on child, Ex’s responses, Letters from FRO indicating she will not agree to terminate Child Support) as well as the case law I have been provided with? When and how do I go about doing this?
    Thanks again

  • #2
    Glad that the court clarified that motions may be brought where either party lives unless it relates to custody. Doesn't matter age of child.

    Different judges and different courts do things differently but a 14b is not intended to be used for substantive matters. i.e. terminating support. It is used for simple procedural matters or consent matters. It is very hard to get most judges to deal with anything on a 14b

    You do not file the case law. Case law is what is used in argument it is not evidence. (of course there is such a thing as a factum which includes case law bu that is not what you are dealing with)

    But to get your evidence in use a Form 14a which is an affidavit form. You should be able to add it to one of the motion to change forms but for some reason they don't like it.

    In the 14 a you will list the facts that are relevant to your motion and you will attach your supporting documentation as exhibits.

    Another way to do it which I prefer but some judges will rebel against is to use A REquest to Admit. The reason why I prefer a Request to /admit is because if the matter goes to trial the REQuest to Admit can be put in the Trial record and is part of the evidence at the Trial. But a 14a is completely irrelevant if you go to trial

    A Request to Admit allows you to make statements in one part and add documents to it. The responding party has 20 days to rebut the statements or say that the documents attached are not authentic. If they do not then the facts are deemed to be true for the case and the documents are deemed to be authentic. This rule is to cut short the time of trials and to force parties to be straight forward with respect to facts and not play games.

    Traditional judges love the Request to Admit as a time saver in trials. But some seem to think it is cheating. You know getting people to deal with real facts and not shadow box.

    I was not in on the early part of the conversation and so I do not know if your case is slam dunk or not.


    • #3
      Thanks Old Lawyer.

      I just spent the night surfing the CanLii, and my moral is in the basement.
      Facts do the case are:
      A. Ex wife refused access to child before overseas deployment in 2004
      B. Daughter sends me letter saying she no longer wants to see me or have access in Jul 2004
      C. Made several attempts since then to contact daughter , no luck
      D. Ex wife has moved and I have no address for her or daughter since 2004
      E. Found wife's place of employment in 2011 and sent registered letter to her asking for proof daughter still lived at home, post secondary education, copies of receipts for,Section 7 expenses. Ex wife sends back note refusing information, but says daughter is still in post secondary education.
      F. FRO sends letter to Ex in 2011 for termination of child support, ex,refuses
      G. 2012 sent similar letter to place of employment. Daughter is now 20 and should have obtained 3 yr degree by now( no break)
      H. FRO sends letter, same as 2011, Ex replies with No.

      Asking the Court to terminate child support as no proof of education or residence has been provided.
      Asking the Court to terminate clause in Order requiring me to carry $250k life insurance with daughter as sole beneficiary.
      Asking the Court to have ex provide proof of Section 7 expenses or order her to pay back over payment.

      I thought I had a case, but from what I have read, the courts do not seem to care if the child has estranged themselves and the mother is not complying with court orders.


      • #4
        1. You are correct that estrangement, alienation or just plain brattiness does not remove obligation for child support (at least not directly)

        2. However a judge will be very sympathetic to your desire to see proof that child is in school and still living with mother. Judges very greatly on what the mother can be required to provide but these are not unreasonable
        - copy of daughter's driver's licence to prove she still lives with mother
        - copy of her report cards
        - evidence that she is enrolled full time at school.

        3. The only thing you have to be careful about is that if you were underpaying based on guidelines the mother can go back three years asking for an increase --- but only if the child is still a child of the marriage.

        4. On these issues it is relevant whether you were legally married or not. If you look at the definition of child in the Divorce Act and in the Children's Law Reform act they are different. Without looking at the words the divorce act refers to a child being a child if over 18 and unable to provide necessities of life due to illness or other reason and courts have said other reason includes full time attendance at school.

        I think the Children's law reform act or the Family Law aCt-- which apply if you were not married specifically refers to full time attendance. There are some differences in wording in any event.

        Whether the child needs to be in full time attendance and whether the child has to pass vary greatly from judge to judge. Some will say that they have to pass and have to take a full course load. Some say as long as they are making a reasonable effort that is good enough.

        My personal view is that it should be somewhere in between. Kids are not as focused as they were a generation ago and drift about in school. This is a North American trend and can not be blamed on a particular child.

        But absolutely I believe that you are entitled to be informed of how the child is doing at school if you are paying support. Some mom's will say it is the child's information and the child is an adult and they can't provide it.

        Very few judges are sympathetic with that. Particularly with a girl. If the mother wants to say she is still a child and the mother is responsible for her she can not on the other hand say. damn if I know what she is taking and how she is doing.

        and none have any sympathy with --none of your business

        And while this has nothing to do with your legal problem my advice as a person who has seen quite a bit is not to give up on a relationship with your daughter no matter how much she says she doesn't want it.

        You both have a great many years ahead to be father and daughter and grandfather to her children and you really should not deprive yourself of that experience because of an attitude born of her childishness or her over identification with her mother's dispute with you.

        When she is 60 and you are gone she will wonder why you didn't care not why she cut you off. --- and if she does --- do you really want her to have to live with that guilt. When she has children she will feel badly that her father doesn't want to be a grandfather when likely nothing is further from the truth.

        Take every opportunity to reopen communication so that your conscience is clear that she will know any deficiencies in her relationship with her father are not because he didn't care. --- but don't feel guilty about any bad feelings on her part born of her over identification with her mother's issues. That is history. She is still part of your future whether she knows it or not.


        • #5
          It is not good law that refusing to have relationship is a grounds for denying support. There was some thought that it might. Phil Epstein wrote a few articles on this maybe five years ago. However it is pretty clear now that this is a dead end

          Judges do crazy things but as of this past summer when I was at a national family law conference in Halifax the speakers were clear that that line of case law was dead in the water.

          For awhile lawyers and judges flirted the idea that if the parent had no relationship or if the child was particularly unfair to the parent it didn't feel right that the parent pay support once the child hit 18.

          However on further reflection it was clear that was not a road we wanted to go down. Children are supported because they are children not because they are pleasing children. Saying well it is different when they hit 18 does not make sense. They are supported past 18 because we recognize that today 18 year olds are not adults in our society. (the fact that they were 40 years ago is not an answer -- 150 years ago they were adults at 8 so should 8 year olds just get support when they are nice.

          Gee Suzie wouldnt go to bed when I told her so she doesn't get fed this month belongs in the 16th century.

          An ex spouse can not be dis-entitled to spousal support or equalization for bad behaviour and a payor spouse is not liable for more support or equalization because she or he is a bad person. Financial responsibilities in modern family law due not flow from being a good guy or a bad guy or a chaste wife or a slut.

          Parents are not denied access or custody because they were a bad husband or a bad wife (although certainly the spouse tries)

          Introducing fault at the child level is with all due respect not the place to start if we wish to reintroduce fault.

          Sure we have seen where the favoured parent responds with glee when the child side with them, but three wrongs do not make a right.

          Child support is paid because the child is financially dependent. Not because he or she is a good boy or girl.

          The payor is entitled to proof the child is still in school, still living at home and to know if she has income and the support recipient has an obligation to provide that failing which the court should terminate support Whether the child is nice is not relevant.


          • #6
            ""So how would the court look on a payor who keeps paying CS but is withholding contributing to secondary school due to his ex & alienated D refusing repeatedly to disclose any financials, they of course have sent me the bills and informed me that D does not have to contribute?"'

            Absolutely the recipient does have to provide financials to get post secondary contribution. And absolutely the payor is entitled to income information on the over 18 year old children ---

            And the child does have to contribute if she has the ability to although there is a great deal of dispute and general greyness about what is an ability to contribute.

            Clearly if the child has money in the bank they have to contribute. But do they have to get student loans. Likely---- but not as clear Do you deem the child to have income they don't have because they should have tried harder? This is not clear at all. A lot of difference in opinion and it is fact driven.

            Now if the current order states say that the payor is to pay 60% of expenses and if that is not the right amount you will need to get the order changed.

            you have to separate alienation or bad behaviour from the recipient's obligation to provide financial information.

            The only bad behaviour that effects obligations in family law is a failure to provide financial information.

            Parents want to hold their child accountable and that is a normal parental instinct, obligation and right. BUT when parents are separated that is not the driving factor. It is the recipient parents obligation to provide the information. Admittedly some judges get foggy on this, but I find most will say if you can not get the information from the kid then they are not under your control and you can not get the support from the spouse


            • #7
              Child of the Marriage: Post-Secondary Education Disclosure

              This is a common question so I copied important posts from other threads here.


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