Child Support and the Adult Child

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So your child has turned 18 and you’re wondering whether Child Support is still payable?  The answer is never black or white in law, but there are various factors to consider to determine this issue (each case is fact specific).  Section 2 of the Divorce Act defines a child of the marriage as a child of two former spouses who, at the material time, (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 obtain the necessaries of life.

The onus to prove the child fits into this definition rests on the parent seeking child support for that child who is over the age of majority.  Although your child may be an adult according to the law, for the purposes of child support, if your child is unable, by reason of illness, disability OR OTHER CAUSE, to withdraw from your charge or obtain the necessaries of life, child support may still be payable. For instance, if the child is over the age of majority and attending post-secondary studies (full time and receiving passing grades), the child may still be entitled to receive support.

In Lalonde v. Lalonde*, Justice Lee considered the following 8 factors:

  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 or her 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.

Each family’s situation will be different and therefore, it is important to determine how your particular fact scenario could be decided.

For more information about your particular situation, please contact WAM Family Law.

*Lalonde v. Lalonde, [2016] A.J. No. 1112 (considering Farden v. Farden (1993), 48 R.F.L (3d) 60 (B.C. Master))

Is Guilt Motivating You To Settle?

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Is Guilt Motivating You to Settle?

In a divorce or separation, in addition to overcoming the emotional hurt, parties must undertake the necessary (and often unpleasant) task of settling property and support.  There are a myriad of reasons for this, including, but not limited to, freezing assets and liabilities to protect both sides and establishing financial security for now two separate households. In my experience, a prime motivation to settle matters is often influenced by guilt.

There are two types of guilt; appropriate and inappropriate.  The first operates as our internal barometer signaling to us that we did something wrong.  It guides our moral compass to help change our behaviour.  The second often occurs when our behaviour or beliefs are met with opposition from a third party.  This makes us feel bad for some likely illegitimate reason.  Distinguishing between the two forms of guilt is important.  Feeling this very real emotion can be crippling (you may not even realize guilt is active), however, understanding which of the two is influencing your decisions is critical.

For instance, many people going through a divorce or separation will settle by accepting far less than they are legally entitled based on their guilt; they desire to “just get things over with” or because they were the one to leave, may believe that a less than balanced settlement will somehow make things better for the other party (or help the person leaving alleviate his or her guilt for asserting their truth by leaving).

Knowing you are making a decision, which is based on appropriate or inappropriate guilt is very important and will assist you in your negotiations. I have witnessed many clients, influenced by guilt, agree to settle and regret their settlement.  For instance, upon the dust settling (so to speak), confidence is restored, hurt feelings subside and the regret of the lopsided settlement may become apparent.  You may have “compromised” more of your share of the property or agreed to a disproportionately unfair spousal support award (i.e. accepted less than you were entitled or agreed to pay more than should have).  The consequences of undoing this decision can come at a price, both emotionally and financially.  If you have obtained independent legal advice regarding the settlement, opening up the agreement can be next to impossible (although, there may be an opportunity in certain cases, such as duress or coercion, for example).

I am the first to believe that two parties, legally informed, may choose to settle outside of what each may be legally entitled.  There are many reasons to compromise, including, saving legal costs.  How often have I heard my client state that he or she would prefer a financial settlement where the money is left for the family, rather than the lawyer?  I do not take any offense to this position.  I agree that this is the better solution.

The point is, be careful to look at your motivation to settle.  If you are overcome by guilt, understand that you may regret your settlement.

You may ponder the following examples to see whether guilt (appropriate or inappropriate) is influencing your decisions:

Knowing my legal rights, am I compromising for the following reasons?

  • I just want this over despite my legal rights/entitlements
  • I am the one at fault for leaving (cheating, falling out of love etc.) and I feel bad
  • I am afraid of his or her reaction if I assert my legal rights
  • I am not willing to compromise and am acting inappropriately by being unnecessarily obstinate and avoiding the situation
  • He/she is not taking this well, therefore, I see this compromise as helping him/her

Whatever you decide, make sure you’re making the decision for the right reasons.

We really do want to help.  Please contact our office for more information about settling your divorce or separation.  This can be a difficult time but remember, “[d]ivorce is always good news.  I know that sounds weird, but it’s true because no good marriage has ever ended in divorce. It’s really that simple.” Louis CK

info@wamfamilylaw.com

 

ANNOUNCEMENT Family Law Chambers News

The Court of Queen’s Bench of Alberta will be changing the times for hearing Family Law Related Chambers Applications. In Calgary, Family Law Chambers will now have one sitting, Monday through Friday at 10 am and 2 pm.   For more information, please click on the link below.

https://albertacourts.ca/docs/default-source/Court-of-Queen%27s-Bench/ntp-2016-05-new-duty-grid-pilot-project.pdf

Difficulties in Determining Support

There are many factors that go into determining one’s income for support purposes.  Executive compensation adds to the confusion and complexity.

http://www.lawyersweekly-digital.com/lawyersweekly/3560?folio=14&pg=15#pg15

 

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