How to stop child support? One of the most common mistakes many people make when it comes to child support payments is to assume that this obligation stops automatically when a child reaches the age of majority (18 years old in Quebec).
The Courts have explained many times already that child support payments initiated by a judgement can also be ended by a judgement. The obligation to pay child support is based on filiation connection, not on age.
This means, if you pay child support and — for some reason — start thinking that it is time to put an end to those payments, you have to apply to the Court.
The rule is that a parent paying child support may stop doing so once his child achieves sufficient financial autonomy. And this, as common sense shows, does not come necessarily at someone’s eighteen’s birthday. A handicap or being full-time student can prevent a child from achieving financial autonomy.
In practical terms this would mean that parents are often required to continue to support their children way beyond the age of majority. Obviously, the fact of achieving financial autonomy is disputable — hence the necessity of the Court’s interference.
It’s interesting to note that the right for child support belongs to a child even if it it’s usually one of the parents who collects it. So when the child becomes of full age, it’s up to him (her) to collect the child support or to make a claim for support (or its modification). And consequently, a claim to terminate child support should be served on such the impleaded child personally, not only on the other parent.
What is important is that the revenue of the major child can be taken into account when deciding if it would be appropriate to reduce or terminate child support payments. The usual approach is to subtract a third of the child’s revenue from the basic parental contribution. But this is not a strict rule, and the Courts can adjust the amount according to the new circumstances altogether. Although the regular way of calculating child support does not apply to children of full age, the guidelines are still used as a starting point, particularly in case of full-time studies.
Studies
A university student without a revenue allowing him (her) to be sufficiently autonomous is still considered to be a dependent child. The age, health conditions, seriousness of commitment and academic success, current educational level and already completed studies altogether with the parents’ available means are taken into account.
The Court might observe that particular student has no talent, intellectual capacity, particular interest or necessary commitment to succeed in studies (if there are many failures in the academic record, for example). In such a case, the parents’ obligation to assume the costs of education would be significantly decreased.
The Courts usually note that a child of full age is still obliged to respect his (her) parents and should not see them as “ATM machines” for all his (her) financial needs. Sheer ingratitude towards parents could be sanctioned by refusing a right for support payments. Yet, a simple fact that a child does not participate in his parent’s life or does not communicate is not grave enough to be seen as “ingratitude.”
The Courts would also look into the financial situation of a student, his (her) income and ability to earn his (her) living. If, for example, there is no factual need to pay rent, some moderate savings and an income is present — like a part-time job, if there is some property (like a motorcycle) and financial aid (as a student loan and a bursary, for example), the Court might conclude that there is no need for parental financial contribution. In some cases the Court decided that annual income of $7,500 or $8,000 or $11,000 (when paying nothing for transportation, clothes and school fees) is enough to consider a student sufficiently autonomous. The general rule is that a child of full age should contribute to his academic expenses according to his (her) abilities, thus reducing support obligations of the parents. Children of full age are expected to work to assume in part their expenses and reduce those to a minimum.
Also, when a parent is offering as parental contribution a roof over a child’s head and food to eat (and no major personal conflicts between them exist), the Court would usually accept and won’t encourage the child’s capricious behaviour if he (she) refuses without serious reasons.
On the other hand, some temporary interruption of studies does not necessarily lead to a loss of dependent child status.
Support payments for second cycle studies (master’s degree level) are exceptional. They are usually granted if a child demonstrates seriousness of his (her) academic efforts and contributes financially to some part of his (her) needs. Sometimes the Courts only allow support payments for the first year, requiring that a student continues on his (her) own after. Sometimes the Courts require that a student provides parents with the transcripts of his (her) academic results, lease copies and income statements (including documented attempts to get a bursary), failing which the parents are allowed to stop paying.
Other Situations
But for full-time studies, there might be other reasons why a child of full age cannot achieve sufficient autonomy. Particularly, some health condition or serious personality problems (including depression, for example) could be such a reason. Pregnancy could also be seen as a relevant factor.
Reviewable Any Time
A judicial decision ordering support payments is reviewable. This means that significant change in circumstances of any party can trigger an application to modify the amounts (or to terminate payments altogether). The party seeking for a modification has to prove the change in child status, place of living, his (her) income as well as new urgent expenses and difficulties in the parent’s life, which did not exist at the moment when the support payments were established or modified last time.
The change is considered sufficient if, known at the time, it would lead to a different decision. (And if the fact already existed and was known at the time, it is not a “change”, evidently).
Such a change should not be an act of free will of the applying party either. If the paying parent or the child voluntarily abandoned a good job or increase life expenses — this won’t count as a change justifying modification of their child support arrangement.
Also, foreseeing some significant change is not enough. The change should have happened before the application for modification of child support is made.
Child support payments are meant to help with food, dwelling, communication, home maintenance, personal care, clothes, furniture and transportation. Therefore, an actual level of child support could be revised when some of those needs have changed seriously. A new decision is made taking into account the needs and means of all the parties involved.
To continue to be considered a dependent child, a person of full age should meet the criteria set by Mme Justice L’Heureux-Dubé:
- The child has no means to provide for him(her) self,
- The child is doing his (her) best trying to provide for him(her) self,
- The child is incapable (physically or mentally) to provide for him(her) self,
- The child does not receive any subsidy of any kind,
- The child currently receives insufficient help to cover his (her) needs.
A child’s income is normally established by evidence. Absent such an evidence the Courts might attribute some fictitious income to the child, based on indirect evidence and reasonable inferences.
Therefore, if a child, taking into account his (her) current educational level and skills, could have found a paying job (even switching to part-time studies), the Courts would require some serious arguments to order the parental support to continue. For example, the Courts are not sympathetic to a sudden change of professional path which would require to start university studies anew if a child of full age already has some educational level allowing to find a job.
All in all, financial autonomy is a question of fact and is analyzed usually in the general context and with all the circumstances in mind.
On the final note, it is important to apply for modification within six months from the moment you’ve become aware of a significant change. Otherwise it would be harder to ask for retroactive effect of such a modification: one would have to prove that it was in fact impossible to act sooner.
Allen Madelin Inc. is a law firm with particular expertise in family law. We offer our first consultation at $125 by phone, videoconference or in person. Do not hesitate to contact us by phone: 514-904-4017 or by email: [email protected].
