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  • Child of the Marriage

    Our eldest child turned 18 last month after graduating from high-school earlier this year. My ex says he no longer a child of the marriage. Eldest child will be attending a college program full-time commencing September. Ex refuses to help eldest in any way with college and refuses to pay child support because child is no longer a "child of the marriage."
    Ex stole > $10,000 from eldest child's trust fund (it was in child's name) during 2001, before we separated.
    Ex argues that since eldest child applied to the college program after turning 18, eldest cannot be considered a "child of the marriage", therefore he is no longer responsible to assist said child with post-secondary education and no longer is responsible for paying child support.
    How do you think a family law court would look at it?

  • #2
    from CanLii, Rotondi v. Rotondi 2014 ONSC 1520:

    [14] The Family Law Act (“FLA”), s. 33(1), governs a parent’s obligation to support a child.[8] The onus is on the parent claiming child support to prove entitlement. The court has discretion as to whether child support should continue to be paid to an adult child.[9]

    [16] Section 2 of the Act defines “child of the marriage” as follows:
    2. “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    (a) is under the age of majority and who has not withdrawn from their charge, or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; [Emphasis added.] "

    Comment


    • #3
      Your son remains a child of the marriage.
      Why have you not filed your final order with FRO? You need to do so.

      In addition, you can estimate the s7 expenses for this coming fall and advise your ex of his anticipated share, with final figures to follow.

      Although FRO more than likely won't be able to immediately collect those s7 (depending on the wording of your final order), you can most certainly put yourself into the position where the child's post secondary expenses will be ordered and thereafter collected by FRO, should your ex not cooperate.
      Start a discussion, not a fire. Post with kindness.

      Comment


      • #4
        So it sounds like eldest finished high school this year, turned 18 in August and will be commencing full-time post-secondary in September? That's what, maybe four weeks that eldest was 18 years old and not in school full time? Your ex is being ridiculous if he thinks this means eldest is not a child of the marriage. The date on which eldest applied for college doesn't matter - what matters is that he is continuing his education full-time, and therefore meets the definition.

        Child support is a different matter - your ex may be able to reduce child support if the kid is living away from home for school or is otherwise semi-independent of your household, but he's on the hook for school expenses (tuition, books, etc).

        Comment


        • #5
          Haha, your ex is dreaming. Your kid has smoothly gone from high school to post-secondary education, and turned 18 in the process, like so many many many other kids whose parents continue to receive CS. There are even cases about kids floundering and changing programs and doing gap years and so on, and still being children of the marriage when it comes to CS and S7 tuition.

          Comment


          • #6
            Ya agree with rioe here. My partners kid took a year off before university--CS stayed the same. Now theyre fighting over post sec costs because his kid doesnt think she should have to pay or her mom have to pay more than an equal split between both parents. Even though her tax benefits bring her cost down to the same as his. Good luck to your ex. Canlii has plenty of cases where these parents were schooled in this argument.

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            • #7
              Kid will stay living at home with me. I have not filed new court orders with FRO because ex won't sign the papers to change child support. I will have to take him to court.
              Before I can do that, I have to get permission from the court.
              Not sure if I should go through with it -- exes lawyer is also a Deputy Judge at the courthouse and last time we were in court we couldn't appear in front of a lot of the Judges because of exes lawyer's "conflicts of interest" and a Trial Conference mysteriously became a Trial (and I wasn't notified) after ex, his lawyer and Judge had a half-hour discussion in the court room. I know because I was locked out the room, but could see through the window and waited outside the courtroom.

              Comment

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