Podcast: Child Support for Adult Children
In this transcribed interview with Dale Goldhawk of Zoomer Radio AM740 in Toronto, family and divorce lawyer Lorne Fine of Fine & Associates Professional Corporation discusses child support for adult children. Read the interview below, or listen to the podcast at the bottom of the page.
Goldhawk Fights Back Podcast: Recorded April 28, 2014
Host: 12:20 on Zoomer Radio. Time to say hello to Lorne Fine. He’s our Goldhawk Fights Back family lawyer. Lorne, great to see you, once again, back in the studio.
Lorne: Thank you for having me.
Host: We always start out with a theme and then branch out gradually to include all areas of family law. Pretty complicated law, isn’t it basically?
Host: Maybe you can say that about all areas of law, but it seems to me that it’s particularly so with family law.
Lorne: Well, nothing’s easy; otherwise I wouldn’t have a job.
Host: Well, that’s right. You wouldn’t have had to go to school to figure out how to do that.
Lorne: That’s right. They had to teach me something.
Host: I guess that’s true. Now, today we’ll start out with this notion: adult children. This has come up on the program. I get emails about it from time to time about, usually, fathers complaining.
Host: Are adult children entitled to support?
Lorne: Child support. Right, child support.
Host: When they’re no longer children?
Lorne: So, I get that question all the time as well.
Host: I bet.
Lorne: And the takeaway point, to sum it all up in a few sentences, is there’s no absolute end date for support.
Lorne: So some people call me and say, “Oh, my child is 21. Is my support obligation over?” And the answer is no, right? It depends.
Host: It’s not the age is it?
Lorne: It’s not the age, no. If the child is enrolled in a full time program of education, or the child is applying himself or herself to the education, to their program, it’s highly unlikely that a court is going to terminate support. So there’s no magical end date. As long as a child is a dependent, then your support obligation is going to continue.
Host: And being a dependent means simply that the child, now a grown man or grown woman away at university somewhere, doesn’t have any income or has very little income, I guess.
Lorne: Right. Well, firstly, I guess you have to start off from the first point. And the first point is entitlement to support. So under the Divorce Act, the child has to be a “child of the marriage” to be entitled to support. “Child of the marriage” means a child who’s under the age of 18 and hasn’t withdrawn from parental control, or over the age of majority, but is unable to withdraw from parental control because of illness, disability, or some other cause.
Host: Okay, so that’s covered, too.
Lorne: Meaning, education-wise.
Host: Well, that could be forever. That could be lifetime, couldn’t it?
Lorne: Well, certainly if the child is ill, or the child is disabled, then yes. Then it may be indefinite, and it may be for lifetime.
Host: That obligation then would never end.
Lorne: That’s right, if the child is sick. I’ve had that situation many times before, unfortunately. And under the Family Law Act, a child is eligible for support if the child is unmarried and a minor, or is enrolled in a full time program of education.
Lorne: So under those bases, the child support could continue for a very, very long time.
Host: I guess. Well when they say enrolled in full time, is that an arguing point, that, “Well, you can’t go to the basket weaving school and still get support from Dad.” Do you hear that kind of thing?
Lorne: Yeah, the child can’t go take one or two courses and barely pass. But if the child has, let’s say, emotional issues and cannot apply himself or herself for whatever reason, then a court’s going to be lenient. A court is going to want to encourage the child to go to school and not be so quick to terminate support if the child has issues, whether they’re emotional or psychological, whatever. But in the normal course, the court wants to see that a child is applying himself, going to school, and taking as many courses as he or she can, unless there’s a really good reason why they can’t take those courses.
Host: Yeah, okay. Essentially, all those things are settled by the judge, because there are so many variables. Unless there’s agreement that the supporting spouse will pay, it’s going to have to be decided by somebody who has the whole picture.
Lorne: Certainly there’s an element of discretion if a judge sees that a child is not applying himself or herself. But like I said, judges lean towards not terminating support so quickly. If your child gets one post-secondary education degree, people used to think, “Once my child gets the BA, I’m off the hook.” That’s not necessarily so, right?
Host: It doesn’t work that way anymore, does it? Not as much anyway.
Lorne: No, it may keep on going.
Host: So it could be undergraduate, post-graduate, PhD. You could go on for a long time.
Lorne: You could, but it reaches a point where if you’re getting post-graduate, PhD, and so on, a judge is going to say, “Okay, the child has to make a contribution to the education expenses,” assuming the child’s away for the program. A judge wants to see that the child is contributing somehow as well, once you get to that state. But there’s no magical ending.
Host: Okay. But then how do you determine the amount? You mentioned here briefly that maybe at the PhD level, the kid could be giving back and offering some support him or herself.
Lorne: Well, even before that. It’s a bone of contention for a lot of people, “How much should my child be contributing towards the education expenses?” As you’ll recall, before when we were talking about child support, it’s base support based on your income, number of kids, and the table amount, the guideline amount.
Host: There’s a guideline amount, but there’s also your income that comes into play.
Lorne: Right. So there’s your income, number of kids, and the table amount. You can see that online if you want to research that. Plus there are section seven expenses, which is extraordinary expenses, education expenses. So it’s the guideline amount plus section seven expenses. So a court’s going to want to see a child make a contribution towards those education expenses, whether it’s a summer job.
Host: What if it’s a loan? I mean, is that considered by courts to be a way of…I mean, you don’t want to see kids rack up too much in the way of student loans, but do they figure into this at all?
Lorne: It does. A judge is not going to insist that a child goes into debt. A judge is not going to insist that a child goes and applies for OSAP or whatever, but if it’s there, if the child has applied for OSAP then that’s going to be considered towards a child’s education. But if there’s, let’s say, scholarships or bursaries or grants that are available for the child. And a judge may say, “Did you apply?” or the payor may say, “Did you apply for those bursaries and grants?” That’s a reasonable argument. I guess the question is how do you calculate support for adult children.
Host: Yeah. I believe I already asked that question. I know there’s an explanation. Lorne, there’s pretty well an explanation for everything, isn’t it? No, so let’s get back to, take it away from the PhD level; take it down a few notches maybe. How is that support amount calculated?
Lorne: Okay, so the amount of support is calculated—there’s two stages. One, as if the adult child is under the age of majority. So as if the child was a minor, like any other support calculation. There’s a presumption amount, but if that amount is inappropriate then an amount that the court says is appropriate based on the means and needs of the parties, and the contributions and the circumstances of the child.
So in other words, you’ll get an argument when a child goes away to school, right? So the child goes away to school and the recipient says, “I still want support for the whole year, because I’m running the household and the child comes home on weekends and I need money to support the household.” And the payor is going to say, “But he’s not there during most of the year. He’s away from school. And I have to pay section seven expenses. I got to pay educational expenses. So you want me to pay twice? You want me to pay once for the room and board at school?”
Host: The answer would be yes.
Lorne: Most of the time that is the answer, but that’s not the right answer. So usually what the court’s do is say, “Look, it’s not fair for the payor to pay twice, to pay for the whole educational expenses and to pay guidelines.” The courts have said when the child’s away from school, maybe it’ll be no support, or maybe it’ll be half the guideline support.
So let’s say your guideline support is $500 a month for your child, that maybe will be $250 a month instead of $500 a month, or maybe it’ll be nothing, because you’re paying, as I said, educational expenses. So the courts have said either nothing or something when the child is not at home, and then maybe full guidelines when the child is as home. So after school is over––school finishes May for university, let’s say May to August––full guideline support for that period. So that’s important for people to consider.
Host: Well, yeah, and if you’ve got two or three kids and they’re all roughly the same age and they’re all going through the university system and you’re still paying that support, you’re talking about some pretty serious money.
Lorne: Yeah, there’s a lot, especially when a child goes away.
Host: That’s where I get the calls saying, “When can I stop paying this? Can I stop paying? They’re all 21.” And of course, the age has nothing to do with it.
Lorne: Right. So hopefully people have RESPs.
Host: That would help, yeah.
Lorne: That makes a big difference. And if you don’t, you should have one. And I’ll tell my clients that they should have their own RESP, because that would be their contribution towards educational expenses, as opposed to a joint RESP.
Host: Already collected beforehand and put in a nest egg so you don’t have additional pain.
Lorne: But once you separate, start your own RESP.
Host: Right then.
Lorne: Right then, because chances are, if your child goes to school, it’s going to be, in my experience, at least $20,000 a year if the child goes away to school.
Host: That would be cheap, wouldn’t it? Kind of? Now that I think about it.
Lorne: Well, you have a child.
Host: I’ve been through this a number of times. You have yet to have the pleasure of adding up all the money amounts. By the time your kids get into university. It’s going to be a lot more than what I had [to deal with].
Lorne: I guess. My oldest is 16; my youngest is nine.
Host: Well, you’ve got some time.
Lorne: I better start saving up.
Host: Yes, that’s right.
Female: Goldhawk Fights Back For You airs Monday to Friday, 11 to one, on AM 740 Zoomer Radio.
Host: 12:35 on Zoomer Radio. Lorne Fine is here, our family lawyer, answering your questions about family law, divorce, that sort of thing. Here are the numbers: 416-360-0740 or 866-740-4740. And we have Victor on the line from Ottobock. Victor, do you have a question for Lorne Fine?
Victor: Yes, I do. Good afternoon.
Victor: Now, this is a story that’s going to take on May the eleventh of this year. This gentleman is 66, never been married, and he’s involved with a girl that’s 31. He’s under psychiatry, has been for many years, and there’s a million dollars of his moneys and he only has one cousin. Now, the doctor had heard about this marriage coming up and the doctor said that she’s committing a fraud. What do you say?
Host: Well, that’s a very good question.
Lorne: Okay, so he’s involved in a relationship with a woman who’s 31-years-old. You said they weren’t married, so it’s common law. How long were they together for?
Host: No, you say they’re about the get married? Is that not what you said, Victor?
Victor: They’re getting married on the eleventh of May.
Host: May 11th.
Lorne: How long were they together before they got married?
Victor: They’ve been together six months.
Lorne: Oh, so they’re barely together. Common law is three years. So they’re not even common law. And you said he’s under psychiatric care?
Victor: Has been for many years.
Lorne: Is he incompetent?
Victor: Well I guess if he’s under the, what do you call, the psychiatry, I guess he can’t do things on his own. I guess that’s what it sounds like, eh?
Lorne: Okay. Well, people go for psychiatric care for a number of reasons. He may be depressed.
Victor: It’s more than that.
Host: But Victor, you know that there’s a process. If a doctor declares you mentally incompetent that’s a different matter than just being under psychiatric care.
Victor: Well, what is it meaning, again if I can repeat, the doctor is saying that the girl is committing a fraud, so what does that mean?
Lorne: I don’t know. I don’t know what the doctor means, but certainly if one of the family members thinks that he’s being taken advantage of—you said there’s a cousin—if there’s a family member that believes that this individual is incompetent, then they should take steps to declare him incompetent. This is really more of an estate question than a family question.
Victor: Oh well, I’m just saying.
Lorne: But someone can be appointed his trustee and if you think this younger woman is taking advantage of this older guy, and that’s what you’re insinuating.
Host: Yeah, but that’s not enough to be declared mentally incompetent.
Lorne: No, he may really love her.
Host: Victor, I’ve been involved in some of these cases. And in one case where I know that—in this case it was a younger man and an older woman—I knew that he was stealing her money and she called me up out of the blue one day and said, “Butt out. Get out of my life. I’ll spend my money any way I want.”
Lorne: He may not care. He may just want to be with her.
Host: Do you talk to him Victor? What do you say?
Victor: No, no, it’s the cousin. It’s my brother’s wife. And the thing is, they’ve tried to talk to him and that she’s only out to take the money.
Host: Well, Lorne, I know that at the other end of things, you have been involved in divorces where somebody was only out for the money. That can happen.
Lorne: It’s possible.
Lorne: Or the man may not care. He may just want to marry her. He may not care about the money. But if he’s incompetent, then someone should take steps to declare him incompetent.
Host: You know Victor, the best advice to give, it’s the nephew, right?
Lorne: The cousin.
Victor: No, the cousin.
Host: A cousin, oh, all right. The best advice to give the cousin, if that’s the only member of the family, is to consult with a lawyer about what, if anything, he could do. But you wouldn’t be consulting with a divorce lawyer.
Lorne: No, no.
Host: You’d be consulting with a wills and estates lawyer.
Lorne: An estates lawyer. So the cousin should, if there’s a medical letter or a medical note, take that to an estate lawyer, express the concerns that he or she has, and let the estate lawyer take the necessary steps.
Victor: I think that’s what the doctor is saying—it’s the lady doctor, she’s going to have to be a witness, let’s call it, meaning that she has been looking after this guy for such a long time.
Host: I know, but if you’re looking for a good legal opinion, you don’t ask your doctor, right?
Lorne: Right. My concern is if she really thought he was incompetent, she would go and take the necessary steps to declare him incompetent. If she thought he was a risk to himself or something.
Host: But I think the family member’s the one who has to, at some point, talk briefly to a wills and estates lawyer and see what, if anything, can be done.
Host: Victor, thanks very much for the call. The point is if you are mentally competent, you can do whatever you want with your money.
Lorne: That’s right.
Host: That’s just a basic legal principle.
Lorne: Listen, Paul McCartney got remarried a second time and he didn’t have a marriage contract. People through he was nuts. He didn’t care, right? Money wasn’t that important to him, but that’s Paul McCartney.
Host: This is in a different league, perhaps you would say.
Lorne: But some people don’t care, if he really loves her and he wants to marry her.
Host: Well, I know, I’ve had direct experience with that. Some of the people, I’ve tried to help and they’ve told me to mind my own business essentially. Okay, here’s Francis calling from Toronto. Francis, what’s your question for Lorne Fine?
Francis: Education savings for university.
Francis: The money was put into the account in the mother’s name. The mother and the father are separated, and the student has no contact with the mother and she refuses to pay the money for her education out of that account.
Lorne: Okay, so the mother has the RESP.
Lorne: Okay, so if she doesn’t want to use the money from the RESP, then that’s her problem, she still has to pay her share. The RESP is supposed to reduce how much she has to pay towards the education expenses.
Francis: Well, she’s not paying any of it.
Lorne: She’s not paying any expenses at all?
Francis: No, absolutely not. The student, she lives with her father and her father had to pay out of his account, but not the RESP account.
Lorne: Okay, so is there a court order or a separation agreement?
Francis: No, she doesn’t follow any of the court orders. She’s just impossible.
Lorne: Okay, but is there a court order?
Francis: Well, they’re still in the process of going through the separation. Nothing is final, but this is the second year that she refuses to pay.
Lorne: All right, so what you would have to do is you would get a court order to specify how much the mother has to pay. In other words, if her share of the educational expenses are 10,000 dollars a year, then the order should say she has to pay x amount per year and let her find out how she has to pay it. If she’s not using RESPs, that’s her problem.
Francis: Well, [inaudible 19:20] RESP, [inaudible 19:21] money [inaudible 19:22] she refuses to pay. She doesn’t have to pay anything else, just the RESP money from her account she refuses to pay for the university.
Lorne: Okay, or you get an order from a judge that that money be applied to the education expenses.
Francis: She’s not following those orders.
Lorne: Okay well, orders are not recommendations, right? They’re not suggestions by the court. When a court makes a court order, they’re meant to be complied with and if she doesn’t comply with court orders then you have to—there’s something called contempt of court.
Lorne: Striking pleadings, there’s all kinds of resources, all kinds of things you could do. So judges don’t like when their court orders are not complied with. So you can speak to a lawyer, and it’s a big problem for her to do that.
Francis: Yeah, it is. Yeah, it is a problem.
Lorne: Yeah, so a judge is not going to be sympathetic to her. If she’s not contributing to the education expenses for no good reason—it sounds like there’s no good reason for her to do this.
Francis: This is strictly the money that was put in for the education, nothing else.
Lorne: Yeah, it seems like she’s doing it maliciously. Then you have to go to court and get an order.
Host: But Francis, as you said as well, they’re still working out the terms of the separation agreement. So these are some of the arguments—does she have a lawyer?
Francis: She’s got a lawyer, but even her lawyer keeps telling her that she has to do it, but for some reason or another she just keeps putting it off.
Host: Well, then the husband can get his lawyer to apply to a court, because as Lorne says, these court determinations aren’t suggestions about a good thing to do, they’re orders. They’re what they are.
Francis: It’s just that it’s taking the whole year; this is for last year to pay education. Now she’s got to start a new year.
Lorne: Then the father would be compensated for any overpayment that he’s made and maybe from the RESPs.
Francis: Well, this is [just] the RESPs that we’re concerned about that she’s not paying out.
Host: Well, that will be dealt with by a judge, when both lawyers get in front of a judge and he will decide what to do. Francis, thanks very much for that.
Lorne: Thank you.
Host: You hear that in a lot of cases, especially, I think, in family law matters, “Oh, yeah, there was a court order to do this or do that.”
Lorne: “Oh, it’s just a court order.”
Host: “It’s just a court order.” They don’t seem to understand that those things, eventually, will get enforced.
Lorne: Well, yes, that’s why they’re made, right? In society, there are courts, courts are there to make decisions, and if people just ignore court orders, there will be chaos, right? What’s the point of having a judge?
Host: Well, we set it up that way as citizens so that we would have some rule of law, we would know what to do in certain situations. That’s why we made lawyers, right?
Lorne: The best thing ever.
Female: Goldhawk Fights Back For You airs Monday to Friday, 11 to one, on AM 740 Zoomer Radio.
Host: 12:50 on Zoomer Radio. Lorne Fine is here answering your questions about family law. And here are the numbers, 416-360-0740 or 866-740-4740. Carrie’s on her cell phone. Carrie, what’s your question?
Carrie: Hi, good afternoon.
Carrie: I moved out of my matrimonial home three years ago. I do not have a legal separation in place with my husband. We both have legal counsel. I am trying to sell my half of the house to my husband—that’s what he wants—although we cannot agree to come up with a reasonable value on the house. I have asked several times to get an appraisal done on the house; he has [inaudible 23:18] to do so. And I have no access to the house; I don’t live there. He’s since changed the locks. Is there any way that I can force him to have an appraisal done on the house?
Lorne: So the house is jointly owned?
Carrie: The house is jointly owned.
Carrie: It is mortgage free.
Carrie: He’s been living in the house; there’s been no occupational rent paid or anything like that. And that’s fine, and I’m not looking for that; I’m just looking at a reasonable amount for the house and he can’t seem to agree on anything. So is there a way to force him to have an appraisal done?
Lorne: Well, a judge cannot force you to transfer the house to him. And a judge can’t force him to transfer the house to you. All a judge is going to do, I believe, in this case, is order the house to be sold. So if he’s not cooperating with you and it’s in his advantage to sell to you, so if he’s not cooperating, then I would just go to court and have the house sold.
Carrie: But my question is—well, there’s several question—but I’m told by my lawyer, who is not a family lawyer, I must say, which is an error on my part. If I could do this over again, I would have absolutely got a family lawyer the first time. So the next step would be to go to a case conference. You can’t just go to the judge, is that not correct?
Lorne: Okay, so you’ve started court proceedings?
Carrie: We have. I have legally filed for divorce.
Lorne: Okay. You started your application. You did your application.
Carrie: Yeah, I started my application.
Lorne: And he did an answer.
Carrie: He’s got an answer to it all, yep. And then we have not proceeded anything further than that.
Lorne: Okay, so which court are you in? Where are you?
Carrie: Downtown Toronto.
Lorne: Okay, so 393 University, that court—I ask, because Newmarket court is much busier. So in Toronto, you can get a case conference date pretty quickly. The court does not want you to bring a motion before the case conference date unless it’s very urgent, unless it’s an emergency or there are dire financial circumstances, which is not the case here.
So you can get a case conference date fairly quickly, probably within the next month or two. And then, I think a judge is going to say, “What’s going on here? I would just order the house sold at a case conference, this makes no sense.” And if you can’t negotiate a deal at a case conference, then you bring a motion to sell, especially if you have a mortgage free, jointly owned house. You have a prima facie right, which means “on the face of it,” to have your equity in the house, unless there’s reasons where maybe there’s other property issues I’m not aware of.
Host: But if the judge were to order that would not there be somebody who would appraise the house to find out what it was worth? Or would it just be an order to sell?
Lorne: A judge would just say, “Sell it. Just sell it.” And so the judge will say, “This house has to be listed for sale and sold, and the parties are to cooperate.” And the net proceeds of sale would likely be held in trust by the lawyer acting on the sale, by the real estate lawyer, pending further order or agreement. So the money gets held by this real estate lawyer. And then my experience is once the real estate lawyer has the money, everyone’s anxious to get their money and it will result in a resolution, either before or after sale.
Host: All right, Carrie, I hope that helps. You might carry that information back to the lawyer you hired. You should have hired a family lawyer in the first place. That’s kind of important, isn’t it?
Lorne: To hire a family lawyer?
Host: Well, yeah.
Lorne: Well, you want to have a lawyer that knows what they’re doing. Some people dabble in family law; maybe this person knows what they’re doing. I don’t know.
Host: Yeah, no, there’s no way to know. But the point is, in a case like this, it would get to court, the judge would order the house to be sold, and then it may well be that both the husband and the wife would jointly agree to have it evaluated, because they want to get the most money for the house they could. They’d be forced into it, wouldn’t they?
Lorne: Yeah. Well, I always say an appraisal is subjective, right? You’re getting an expert to say, “This is what the property’s worth.” And now the market is so crazy, you don’t know what the property’s worth.
Host: I know, but it’s better than starting at nothing, isn’t it?
Lorne: No, but the market will say what the property’s worth. List it for sale and somebody will come and put an offer on the house. I don’t understand why this person’s not selling, not getting an appraisal. It’s very easy just to go to court and say, “Have it sold.”
Host: It’s possible they don’t like each other.
Lorne: What gave you that idea?
Host: That whole notion about divorce in the first place. I can take one more call, if somebody wants to call quickly: 416-360-0740 or 866-740-4740. So when you get involved in family law though, it touches on so many other aspects of life, doesn’t it? In one hand, the RESP that can’t get released. The value of a house, you get into real estate law.
Lorne: Estate law, real estate law, tax law.
Host: Estate law as well.
Lorne: Criminal law. There are all kinds of interconnections, because like you said, it’s life. You have your relationships and there are all kinds of things.
Host: Because a relationship brings into play all of those other aspects of life. Do you find yourself oftentimes working with lawyers in other disciplines on cases like this?
Lorne: Oh, yeah, if there are complicated tax issues, absolutely. If there are criminal proceedings. Unfortunately, there’s a lot of connection between assaults and family law matters. So dealing with a criminal lawyer happens very often.
Host: Yeah, yeah.
Lorne: There’s an assault and then they get separated.
Host: Yeah, yeah.
Lorne: So that’s very frequent. And of course real estate lawyers. I don’t practice real estate. You need a separate lawyer who does real estate to sell a house. And you’re always dealing with real estate lawyers. We’re dealing with matrimonial home and sale proceeds and so on. You’re always dealing with real estate lawyers.
Host: Yeah, yeah. All right, do we got a call there I can take quickly, or no? I don’t think we do.
Lorne: Oh, okay.
Host: Mary’s solving the problem [inaudible 29:43] as we speak.
Lorne: I was going to say what I frequently get asked by people, going back to child support, we say adult children, we’re not talking about adults who are—I have situations where people call me who are in their 30s or 40s and say, “My dad never supported me, I want to sue my dad.” That’s not the way it works.
Host: That’s good luck. That’s good luck time, isn’t it?
Lorne: Do you remember the Mel Lastman case?
Lorne: Where they tried to sue Mel for support?
Host: With his second family.
Lorne: With his second family. So I frequently get calls for that, and it just doesn’t happen. That was an important case and it got dismissed, because the court said there’s no jurisdiction to order support for these individuals who are now in their 40s or 50s.
Host: Well, they’ve gone past all the parameters.
Lorne: They’re not in school, so on and so forth. So when we’re talking about adult children, we’re talking about children who are in school on a full time basis, not someone who’s complaining that their dad didn’t support them.
Host: Okay, all right.
Host: Okay. Well that’s good.
Lorne: You’re tired?
Host: Well, you got to take in all this information.
Lorne: There’s a lot of information.
Host:All these various and sundry points of law. And then of course when Les [inaudible 30:51] comes in, he’s our wills and estates guy.
Lorne: Yeah, Les is great.
Host: There’s a complicated area of law as well. So you try to wrap all this up into one package that people can get some use out of. Lorne thanks very much for coming in.
Lorne: Thank you for having me.
Host: Appreciate your time.
Lorne: Thank you very much.
Host: Lorne Fine, our Goldhawk Fights Back family and divorce lawyer.
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