Whether child support can or should be cancelled is a complex topic that, like many other areas of law, depends on the circumstances. There is no clear or direct answer as to when child support stops or can be cancelled.
A common misunderstanding in Ontario is that child support automatically ends when the child reaches the age of 18, which in Ontario is the legal age of majority. Under the Family Law Act and the Divorce Act, child support is owing to the “child of the marriage”. Once a child ceases to be a child of the marriage (i.e. reaches the age of majority), technically child support is no longer owing.
However, child support can still be owing past the legal age of majority. For more information regarding this topic, see our previous blog that covers how long a parent has to pay child support.
Agreement or Court Order
A common way for child support to end or be cancelled is through a written agreement or court order. Domestic contracts are a common method for parties to enter into and agree to cancel child support based on an agreed-upon terminating event. This can be either upon the child(ren) reaching a certain age (18) or stage in their life (moving out of the home, getting married, etc.).
Court orders are also a common and effective way to have child support cancelled. Parties will either have an existing Court Order stating when child support is to end or bring a Motion to Change in court to cancel the child support obligation.
Removing Child Support via the Family Responsibility Office
If the payor parent believes that support should end, the payor parent can write to the Family Responsibility Office advising as such. The Family Responsibility Office will write to the recipient for confirmation. Depending on how the recipient responds, the Family Responsibility Office has several options:
- If the recipient denies that support should end, the Family Responsibility continues to enforce the support order
- If the recipient does not respond to their request, they can stop enforcing support payments or enforce a lower amount of support. However, if the recipient tells them later on that payments should not have ended, they can start enforcing payments again.
- If the recipient agrees in writing to end support, they will tell you in writing that you can stop making support payments.
Refusing Child Support
Parties may contract out of their child support obligation in writing through marriage or separation agreements. However, any parties who may choose to take this approach should note that such a provision, while may be agreed upon by the parties, will not always be enforceable in court. Courts may override any provisions which state that the parties agree to refuse child support.
While any such agreement to refuse child support may be allowed outside of a court proceeding, the Supreme Court of Canada in Willick v Willick states that parties are not allowed to barter away child support, as it is the right of the child.
Child Support Reimbursement
Often it happens that child support was to have ended but the payor or payee did not notify the Family Responsibility Office. All the while, child support payments have been continuously made, or child support arrears have accumulated. At a point when the payor realizes that child support was to have ended, they will have overpaid on their support obligation. When making an argument for overpayment of child support and seeking to be reimbursed, the court in Chenard v Hodgson, Justice held that there is a presumptive three-year retroactive time limit for claims for reimbursement of overpaid child support. This three-year time frame may be set aside in rare circumstances which usually includes blameworthy conduct.
For example, the court in Grey v Grey stated that the support recipient knew that the child support was to have ended but refused to sign a consent to terminate child support. As a result, the Family Responsibility Office continued to enforce his support obligation. The court ordered the support recipient to reimburse the support payor for 76 months of overpayment equaling $16,000.00.
If you believe that your child support obligation is nearing or has come to an end, ensure that you have taken the appropriate steps in order to cancel child support payments. It is advisable to contact a lawyer, as they will be able to assist navigating through the process of terminating a child support obligation.
Barry Nussbaum is a senior lawyer at Nussbaum Law, a Toronto-based law firm that exclusively practices family and divorce law.