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Divorce Act insight: no longer "child of the marriage"

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  • Divorce Act insight: no longer "child of the marriage"

    Greetings All:

    Is "other cause" synonymous with "full time program of education" (see *)
    Why: I intend on securing a Motion to Change resulting from material change in circumstances (S18 no longer child of marriage) due to: a. turned 18 fall 2021, b. not in full time education program.

    Background: Divorce Order 2018, identified (amongst several issues) CS payable to OP (2 kids living full time with);
    S(now)18 playing competitive hockey full time, post secondary education part time (2 online courses/semester, worked part time (now not working)

    * Divorce Act: 2
    "child of the marriage" means a child of two spouses or former spouses who, at the material time,
    (b) is sixteen years of age 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;

  • #2
    If he is only taking part time studies then he is no longer a child of the marriage. Other cause is simply a situation where the other parent can successfully argue they need support as the child could not withdraw from their care. For instance getting medical procedures and not in school, ill and not in school, taking upgrading or training to get back in school etc.

    Comment


    • #3
      If the child has plans to attend post secondary full time in the near future, they would still be a child of the marriage. If there is a reason they are doing part time right now ( academic upgrading or accomodations) they would still be a child of the marriage.

      Comment


      • #4
        Originally posted by rockscan View Post
        If he is only taking part time studies then he is no longer a child of the marriage. Other cause is simply a situation where the other parent can successfully argue they need support as the child could not withdraw from their care. For instance getting medical procedures and not in school, ill and not in school, taking upgrading or training to get back in school etc.
        ^ appreciate your prompt succinct response (including examples) Rockscan 👍

        OP's position is S18:
        "... is under their charge, but unable by reason of other cause (full time competitive hockey) to withdraw from their charge or to obtain the necessaries of life. "

        Analysis and Ruling on Mitchell’s Entitlement to Child Support

        [40] In the face of the Respondent’s claim that Mitchell is no longer entitled to child support, the Applicant had an obligation as the parent seeking ongoing child support to tender the evidence required to fully assess this issue. I am satisfied based on the evidence that Mitchell remains under the charge of the parties. However, the evidence does not satisfy me on a balance of probabilities that Mitchell has been unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life since he turned eighteen years of age on October 16, 2009. I therefore conclude that Mitchell’s entitlement to child support ended effective October 31, 2009.

        Szitas v. Szitas, 2012 ONSC 1548 (CanLII)

        My addition: Mitchell was in part time education = 1 course/semester

        Comment


        • #5
          Divorce Act insight: no longer "child of the marriage"

          Originally posted by blinkandimgone View Post
          If the child has plans to attend post secondary full time in the near future, they would still be a child of the marriage. If there is a reason they are doing part time right now ( academic upgrading or accomodations) they would still be a child of the marriage.

          Kid is playing hockey full time. Not upgrading or in school. Victory laps are a different ball game.

          But heres a questionis he getting paid to play? Some leagues pay their players to playor is he playing in order to secure a scholarship! It may be a little bit more grey than you think.

          Comment


          • #6
            Originally posted by blinkandimgone View Post
            If the child has plans to attend post secondary full time in the near future, they would still be a child of the marriage. If there is a reason they are doing part time right now ( academic upgrading or accomodations) they would still be a child of the marriage.
            ^ point acknowledged (and well said) blinkandimgone!

            The following came to mind as I read your post:

            * Whether or not attendance in a post-secondary institution will be sufficient cause for a finding that the child is still a "child of the marriage" requires examination of all of the circumstances. It is not a conclusion which follows automatically from proof of attendance at the institution [McNulty v. McNulty (1976), 1976 CanLII 1935 (BC SC), 25 R.F.L. 29 (B.C.S.C.)]. In my view the relevant circumstances include:

            (1) whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies;

            (2) whether or not the child has applied for or is eligible for student loans or other financial assistance;

            (3) the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;

            (4) the ability of the child to contribute to his own support through part-time employment;

            (5) the age of the child;

            (6) the child's past academic performance, whether the child is demonstrating success in the chosen course of studies;

            (7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;

            (8) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.

            *Farden v. Farden, 1993 CanLII 2570 (BC SC)

            Comment


            • #7
              Originally posted by kidsRworthit View Post
              ^ point acknowledged (and well said) blinkandimgone!

              The following came to mind as I read your post:

              * Whether or not attendance in a post-secondary institution will be sufficient cause for a finding that the child is still a "child of the marriage" requires examination of all of the circumstances. It is not a conclusion which follows automatically from proof of attendance at the institution [McNulty v. McNulty (1976), 1976 CanLII 1935 (BC SC), 25 R.F.L. 29 (B.C.S.C.)]. In my view the relevant circumstances include:

              (1) whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies;

              (2) whether or not the child has applied for or is eligible for student loans or other financial assistance;

              (3) the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;

              (4) the ability of the child to contribute to his own support through part-time employment;

              (5) the age of the child;

              (6) the child's past academic performance, whether the child is demonstrating success in the chosen course of studies;

              (7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;

              (8) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.

              *Farden v. Farden, 1993 CanLII 2570 (BC SC)

              A lot has changed since Farden namely the age kids go to university and education plans. A lot of kids dont go to college/university after finishing high school and as a result *may* still be a child of the marriage. An argument can be made for and against support.

              Not to mention you can find several cases from previous years but there arent many recently. When my husband went through this in 2018, the judge said no support if they werent in school and it was questionable for the kid who said they were taking a victory lap (turns out they werent doing it but didnt tell anyone).

              Comment


              • #8
                Originally posted by rockscan View Post
                Kid is playing hockey full time. Not upgrading or in school. Victory laps are a different ball game.

                But here�s a question�is he getting paid to play? Some leagues pay their players to play�or is he playing in order to secure a scholarship! It may be a little bit more grey than you think.
                ^ Agreed to a bit grey area...

                Son is not getting paid to play.
                He is playing :

                a. with interest in securing a scholarship;
                b. with interest in paid career (OP identified: in his dreams of playing in NHL.

                Sidebar:
                1. OP is team manager;
                2. Step-father is team coach: played in Major Junior Hockey League (Quebec)

                Comment


                • #9
                  Originally posted by rockscan View Post
                  A lot has changed since Farden namely the age kids go to university and education plans. A lot of kids don�t go to college/university after finishing high school and as a result *may* still be a child of the marriage. An argument can be made for and against support.

                  Not to mention you can find several cases from previous years but there aren�t many recently. When my husband went through this in 2018, the judge said no support if they weren�t in school and it was questionable for the kid who said they were taking a victory lap (turns out they weren�t doing it but didn�t tell anyone).
                  ^ acknowledged and appreciated

                  Could the situation then be assessed, based on "merits of the case";
                  And judge then make determination if a. dependant remains "child of marriage". and if so:
                  b. if FCSAG are deemed inappropriate, then what "amount' would be deemed appropriate in light of the case?

                  Comment


                  • #10
                    Divorce Act insight: no longer "child of the marriage"

                    It will be table support. Sont let the fcsg fool you. If you arent offset, its full table.

                    You could try to file to stop cs. Has kid applied to schools for the fall? What are his plans next year?

                    Wanting to play in NhL will be laughed out of court. Trying to get a scholarship would be considered. Its May though, he would know his intentions for next year.
                    Last edited by rockscan; 05-05-2022, 12:11 PM.

                    Comment


                    • #11
                      Originally posted by kidsRworthit View Post
                      ^ Agreed to a bit grey area...

                      Son is not getting paid to play.
                      He is playing :

                      a. with interest in securing a scholarship;
                      b. with interest in paid career (OP identified: in his dreams of playing in NHL.

                      Sidebar:
                      1. OP is team manager;
                      2. Step-father is team coach: played in Major Junior Hockey League (Quebec)

                      Is there a requirement that he must be enrolled at leat part time to qualify for the scholarship?

                      If this is the case, it would be a long term benefit for all parties to support the current situation. A full scholarship is nothing to scoff at!

                      Comment


                      • #12
                        Originally posted by rockscan View Post
                        It will be table support. Son�t let the fcsg fool you. If you aren�t offset, it�s full table.

                        You could try to file to stop cs. Has kid applied to schools for the fall? What are his plans next year?

                        Wanting to play in NhL will be laughed out of court. Trying to get a scholarship would be considered. It�s May though, he would know his intentions for next year.
                        ^ oh, ok: then it's either YES tchild/children/dependant qualifies for CS (offset or full table amount): or NO - child/children/dependant does not qualify for CS

                        To clarify: son has interest in playing Junior hockey, since this is natural progression path to being "scouted" for big leagues (paid career).

                        Secondary plan: if securing Junior hockey doesn't materialize (don't get a call-up &/or make their hockey camp), uncertain of his ambitions:
                        though believe he has interest in moving to wherever he may play at a competitive level (billet with hockey family in Canada or US) in order to play at a competitive hockey level.

                        Brief summary (from what my son mentioned/with my summary)
                        University hockey routinely routinely fills its roster from athletes who have played Junior hockey, for one to three years; then determine they are unable to realize "the next level" (Pro hockey).
                        Put another way: University is pursued as plan B, (secondarily); as they aren't able to progress further beyond Junior hockey.

                        His laser focus now being: to play competitive hockey by making a hockey camp this summer. No focus on school in the fall: or perhaps taking an online uni course or two.

                        Aside: sadly the NHL dream has been continuously promoted to him (despite clear and wise words to contrary by Justice(s) especially 2013-2014.
                        Unfortunately, parents don't always action court endorsements/orders (in the children's best interests): often if these court orders aren't aligned to their personal agenda(s)...

                        Comment


                        • #13
                          Originally posted by blinkandimgone View Post
                          Is there a requirement that he must be enrolled at leat part time to qualify for the scholarship?

                          If this is the case, it would be a long term benefit for all parties to support the current situation. A full scholarship is nothing to scoff at!
                          ^ clarification: hockey scholarship is actually secondary. (no mention of it)
                          Greatly appreciate your point 👍 Uncertain if enrolment P/T in school is scholarship prequalification. Thanks, will research!

                          He is laser focused on playing for (any) competitive hockey team this fall (Canada/US), by making the hockey camp (tryouts) this summer.

                          Uni courses haven't been considered/discussed for the fall, plainly because that is secondary and not his focus.

                          Note: I've identified the importance of taking Uni courses in his area of interest, while also playing hockey = as building toward his future.
                          That way, if he doesn't realize where he wants to be; he's not starting from the beginning, and he can carry forward with his Uni studies and non-hockey player career path...

                          Comment


                          • #14
                            Did your relationship with your kids ever improve after the court dates in 2018-2019? Hopefully it has.

                            Your case is a crapshoot. He is being coached (literally and figuratively) to believe he has talent and a chance. In reality VERY FEW kids end up in the big leagues. He should be focusing on a scholarship but it doesnt sound like he is as his mom and step dad are encouraging this. Is it his dream or theirs?

                            If you want to self rep you could simply stop paying cs or file to stop cs as kid is over 18 and not in a meaningful program of study. If he hasnt even applied to schools with a scholarship then its a no brainer this is not a child of the marriage.

                            Comment


                            • #15
                              Originally posted by kidsRworthit View Post
                              ^ clarification: hockey scholarship is actually secondary. (no mention of it)
                              Greatly appreciate your point 👍 Uncertain if enrolment P/T in school is scholarship prequalification. Thanks, will research!

                              He is laser focused on playing for (any) competitive hockey team this fall (Canada/US), by making the hockey camp (tryouts) this summer.

                              Uni courses haven't been considered/discussed for the fall, plainly because that is secondary and not his focus.

                              Note: I've identified the importance of taking Uni courses in his area of interest, while also playing hockey = as building toward his future.
                              That way, if he doesn't realize where he wants to be; he's not starting from the beginning, and he can carry forward with his Uni studies and non-hockey player career path...

                              Post secondary is an important consideration for him whether he plays or not. Professional sports is a short career, so he should ideally have education to pursue a career after hockey. If he gets injured, he's suddenly out of a hockey career so this is an 'and' strategy rather than an 'or' strategy.

                              Comment

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