ASK A LAWYER: What happens to child support when the child goes to university?

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It’s September, which – for parents and most people under 18 – means ‘back to school’.

For parents with older children, this time of year can also mean saying goodbye to children who are heading off to post-secondary education, sometimes far from home.

What does that mean for child support?

It’s often assumed that child support payments end when a child leaves home to attend some kind of post-secondary institution, but that’s not (usually) the case.  Typically, child support is continued in some form when the parent receiving support is maintaining a home for the child in school, whether the child is living there full-time while attending school or only returning during the summer term.

The Family Law Act, Section 31(1), specifies that “Every parent has an obligation to provide child support for his or her unmarried child who is a minor or enrolled in a full-time program of education, to the extent that the parent is capable of doing so.”  The amount of that support is generally set by the Child Support Guidelines, according to their child support table.

However, when a child is living at home for only part of the school year – i.e. attending university away from home during September-April, and living with the residential parent from May to August – the Ontario Court of Appeal has found that the table guidelines may be “inappropriate”, and that an appropriate amount should be determined based on the “condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.”

In some cases, a reduced amount of child support is paid over 12 months, reflecting the fact that the custodial parent is maintaining a home base for the child (who may be coming home on weekends, holiday breaks, etc.) throughout the year. In other cases, full child support is paid during the months the child is in full-time residence, but no support during the months the child is away at school.  The courts have recognized that this period will look a little different for every family, depending on individual circumstances, and have responded appropriately.

Of course, in many cases, families work out their own arrangements without involving the courts.  It’s a transitional time for everyone – parents, the child going to post-secondary school, and siblings still living at home – so before making any big decisions, it can be helpful to get together to discuss needs, expectations, and long-term plans. You may need to consult a lawyer to formalize any new arrangements.

Questions? Don’t hesitate to get in touch.

This blog is provided for educational purposes only and should not be construed as specific legal advice. This blog should not be used as a substitute for competent legal advice from a licensed professional lawyer in your province.  

 

ASK A LAWYER: What do common-law partners get in a split?

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Timothy N Sullivan Ottawa lawyer answers questions

“My common-law partner just cheated on me, so we’re breaking up. Will he still get half the house, even though I’m the one who put up the down payment and paid most of the mortgage?”

It depends. If the house was jointly owned – so both names are on the deed – the likelihood is that he will, in fact, get half the house, regardless of his behaviour or how much more you paid over the course of the ownership.

When two people are married, certain property rights kick in.  On separation or death, a spouse is allowed to ask the court for an equalization of net family property. This means that the parties split half of the growth of the value of assets from the date of marriage to the valuation date which is either the date of separation were the date of death.  (There is a third opportunity to equalize but it’s rarely triggered.)

However, common-law spouses in Ontario do not enjoy that same right to equalize net family properties.

When common-law parties separate now they are entitled to receive their own property without sharing its value unless it was a jointly owned property.  This applies to property like real estate or a bank account. A common-law spouse is not allowed to receive the value of the other spouse’s property by right. A common-law spouse is only entitled to the other spouse’s property if it is given or inherited or there is some other voluntary and conscientious transfer of title.

The exception to the common-law rules

The exception to this is something called a constructive trust or an unjust enrichment.

The unjust enrichment is the claim and constructive trust is the remedy.

A common-law spouse, if it turns out that he or she contributed to the spouse’s property by either working the land or building a house or making a renovation to a building or paying on the mortgage, can claim for a return of the benefit imparted to the owner. The test for this is that a defendant must have had a benefit to the plaintiff’s detriment without a legal reason to benefit.  A legal reason for the benefit may be that the labour was paid in wages or the use of the property was paid in rent.  It does not apply only to common-law spouses. The same claim and remedy are available to people outside of a common-law relationship.  A brother who helps a sister with a mortgage or help build a house for a neighbour, an unjust enrichment can arise.

Taken to another level, common-law spouses are now beginning to benefit with what has come to be called a “joint family venture.  This legal concept essentially is to make a common-law relationship somewhat equivalent to a marriage in terms of property rights.  The court has identified very similar traits in the joint family venture as is seen in the equalization of net family property.

There are certain drawbacks to this approach because there are no identifiable dates from which to start the calculation, but a separation date is usually as clear as in the case of a marriage.

 

The bottom line

For most common-law couples who jointly own real estate or other substantial assets, they will in fact be split 50-50 if the matter goes to court. In fact, it is not really a legal dispute to take one’s own property when a relationship ends.  There are situations in which this may not be automatic.

FROM ADVOCATE DAILY:

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Best interests analysis for kids, not pets

From this week’s article on Advocate Daily, by our own Timothy Sullivan:

When it comes to seeking “custody” of a family pet, Ontario courts have followed a somewhat consistent approach in viewing animals as mere property — not children — although judges are still sometimes asked to treat children and pets equally, Ottawa family lawyer Timothy N. Sullivan writes in Lawyers Weekly.

“Strictly speaking, the family dog and cat are property, and subject to the regular provisions of Part I of the Ontario Family Law Act. Telling your pet-loving client this, however, rarely goes over well,” writes Sullivan, principal at SullivanLaw in Ottawa.

To read more, check out the whole story on AdvocateDaily.