Ottawa Divorce .com Forums


User CP

New posts

Advertising

  Ottawa Divorce .com Forums > Main Category > Divorce & Family Law

Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

Reply
 
Thread Tools
  #1  
Old 05-05-2022, 10:16 AM
kidsRworthit kidsRworthit is offline
Senior Member
 
Join Date: Jul 2011
Posts: 146
kidsRworthit is an unknown quantity at this point
Default 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;
Reply With Quote
  #2  
Old 05-05-2022, 10:36 AM
rockscan rockscan is offline
Senior Member
 
Join Date: Mar 2014
Posts: 6,729
rockscan will become famous soon enoughrockscan will become famous soon enough
Default

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.
Reply With Quote
  #3  
Old 05-05-2022, 10:47 AM
blinkandimgone's Avatar
blinkandimgone blinkandimgone is offline
Moderator
 
Join Date: Feb 2010
Location: Lucknow
Posts: 5,551
blinkandimgone is a jewel in the roughblinkandimgone is a jewel in the roughblinkandimgone is a jewel in the rough
Default

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.
Reply With Quote
  #4  
Old 05-05-2022, 11:03 AM
kidsRworthit kidsRworthit is offline
Senior Member
 
Join Date: Jul 2011
Posts: 146
kidsRworthit is an unknown quantity at this point
Default

Quote:
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
Reply With Quote
  #5  
Old 05-05-2022, 11:09 AM
rockscan rockscan is offline
Senior Member
 
Join Date: Mar 2014
Posts: 6,729
rockscan will become famous soon enoughrockscan will become famous soon enough
Default Divorce Act insight: no longer "child of the marriage"

Quote:
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.
Reply With Quote
  #6  
Old 05-05-2022, 11:16 AM
kidsRworthit kidsRworthit is offline
Senior Member
 
Join Date: Jul 2011
Posts: 146
kidsRworthit is an unknown quantity at this point
Default

Quote:
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)
Reply With Quote
  #7  
Old 05-05-2022, 11:37 AM
rockscan rockscan is offline
Senior Member
 
Join Date: Mar 2014
Posts: 6,729
rockscan will become famous soon enoughrockscan will become famous soon enough
Default

Quote:
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).
Reply With Quote
  #8  
Old 05-05-2022, 11:42 AM
kidsRworthit kidsRworthit is offline
Senior Member
 
Join Date: Jul 2011
Posts: 146
kidsRworthit is an unknown quantity at this point
Default

Quote:
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)
Reply With Quote
  #9  
Old 05-05-2022, 11:48 AM
kidsRworthit kidsRworthit is offline
Senior Member
 
Join Date: Jul 2011
Posts: 146
kidsRworthit is an unknown quantity at this point
Default

Quote:
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?
Reply With Quote
  #10  
Old 05-05-2022, 12:08 PM
rockscan rockscan is offline
Senior Member
 
Join Date: Mar 2014
Posts: 6,729
rockscan will become famous soon enoughrockscan will become famous soon enough
Default 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 at 12:11 PM.
Reply With Quote
Reply


Currently Active Users Viewing This Thread: 1 (0 members and 1 guests)
 
Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is On


Similar Threads
Thread Thread Starter Forum Replies Last Post
Joint Divorce Procedure In Ontario? In-Law Trouble Divorce & Family Law 5 12-09-2014 10:57 PM
"Child Definition" under the Divorce Act 99bobster99 Divorce & Family Law 11 05-20-2011 07:18 AM
Online divorce? ExWife2Many General Chat 10 08-12-2010 08:15 AM
Surviving Divorce FPI Divorce & Family Law 2 04-29-2009 07:56 PM
Confused - Need Help -30 Days Up TODivorce Divorce & Family Law 1 12-22-2006 09:04 AM


All times are GMT -4. The time now is 05:05 PM.