Podcast: Child Support Law
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 May 29, 2014
Dale Goldhawk: This has nothing to do with politics. You may be breathing a sigh of relief to hear that. I want to welcome into the studio one of our regular contributors, Lorne Fine.
Lorne Fine: Thank you for having me.
Dale: He’s our family and divorce lawyer. Great to see you back. Did you bring your book? Oh, you did!
Lorne: I have my big book, yes.
Dale: The big book.
Dale: So you’re ready for anything, right?
Lorne: I’m ready for action.
Dale: Let’s start by asking… We’ve talked a lot about child support in terms of the obligations of parents in a divorce.
Lorne: How it is calculated.
Dale: How it is calculated, but let’s turn the tables on that. Does a child have an obligation to provide support for a parent? Does that ever happen?
Lorne: It does happen. Section 32 of the Family Law Act does provide… I can actually read it to you. It does provide that, “Every child who is not a minor, [so we’re talking about adult children] has the obligation to provide support in accordance with need for his or her parent who has cared for or provided support for the child to the extent that the child is capable of doing so.”
So it’s a reciprocal obligation for an adult child to support a parent. The caveat is that a parent who has cared for or provided support for the child. So it’s possible for a parent to seek support from an adult child. It doesn’t happen very often.
Dale: Have you ever had cases like that yourself?
Lorne: I’ve had one case in my career. It doesn’t happen very often. There’s one case where the one
kid won the lottery. The adult kid won the lottery and wasn’t sharing with his mom.
Lorne: Then his mom went into courts and wanted support from this son.
Dale: Did mom get support?
Lorne: Mom, didn’t get the support.
Lorne: No, because she didn’t need it. It wasn’t a matter of need. She just wanted it.
Dale: Yes. The law wouldn’t look kindly on that.
Lorne: You can’t blame her.
Dale: The law is based on need in a case like this. Not on, “I would like a million dollars.”
Lorne: Yes. It’s not want. It’s need.
Dale: I don’t necessarily need it, but then again, who doesn’t need a million dollars?
Lorne: Yes. It wouldn’t hurt, but she wasn’t in financial need, necessarily. Her son won the lottery and she wanted a piece of the action.
Dale: She thought, “Why not? I’ll give it a shot”.
Lorne: Why not?
Dale:If it’s a legitimate case where that need can be demonstrated, how would you determine what the grown child would have to pay to the parent?
Lorne: That’s a good question. I think that it would probably be based on some analysis of the means and the needs of the adult and what the expenses are. How much the adult child is earning as well. I think it’s just discretionary with the court as to what is appropriate in the circumstances.
So these cases are not very common. It’s obviously usually when there is some problem with the relationship. Not a lot of examples where parents seek support from their kids, but it’s possible.
Dale:You can imagine a scenario where it in fact, would make sense to have that kind of law where the parents worked hard for many, many years raising the kids, feeding the kids, maybe paying to have them go to University or whatever.
Then when economic hardship falls upon the parents, it only seems fair that there would be some vehicle that you could get money from a grown child who might be doing quite well for all you know.
That’s why it’s there. That’s why the Family Law Act provides for it. It’s completely possible. It just doesn’t happen very often, but you’re right.
Dale: Maybe it doesn’t happen very often because very few people would… Unless they asked you about it or asked another… They wouldn’t know that it was there.
Lorne: That’s right. You’re absolutely right. People don’t know that they have that right. There probably are many of your listeners who are in that situation who don’t realize that. They know about child support.
They know about spousal support, but they don’t really know that an adult can possibly go after their child for support if there is need.
Lorne: It’s the same thing we were talking about as well regarding step-parents. People don’t realize when it comes to step-parents that if you get involved in a relationship with another person who has kids, that you are exposing yourself to having to pay child support for your non-biological children.
Dale: Well, you’d have to marry the person.
Lorne: No. You don’t even have to marry the person. Even if you live with this person.
Dale: Wait a minute now. So, you move in with someone and that someone has two kids. You wind up sharing the same responsibilities as if you had been married to the person and those were your kids.
Lorne: Really. Yes. So people are surprised by that as well.
Dale: No kidding, they are surprised about that!
Lorne: There’s a danger. If you move in with somebody who has children and you’re assuming the role… It’s called loco parentis. It’s as if you acted…
Dale: Local what?
Lorne: Loco Parentis.
Lorne: It’s as if you’ve stood in the place of a parent. It’s as if you’ve acted in the place of a parent to the child. The Family Law Act says that you settled intention to treat the child as a child of his or her family. If you acted like a responsible parent, you are potentially exposed to paying child support if you break up.
Dale: Essentially, the scenario there might be that you move in with someone who has two kids. The relationship goes sour. You move away. You go away and the natural parent of the two kids comes after you for child support. Is that how it works?
Lorne: The natural parent, first of all, the person that you broke up with can come after you.
Dale: Yes. That’s what I mean.
Dale:And no marriage need to have taken place.
Lorne: No marriage needs to take place. The dispute that happens is that the person who moved in will say, “Look, I wasn’t acting as a parent. I was just a nice guy. I was just being pleasant to the child and being nice to the child.”
Then the court has to interpret if the was being nice to the child or was he acting as if he was a parent to that child.
Dale: That’s a fine line. How do you demonstrate that?
Lorne: There’s a case called, [inaudible 00:06:55], which is a Supreme Court of Canada decision. It’s an objective test. The court has to look at all kinds of things, like financial provisions. Whether you supported the child.
The length of the relationship. Were you there for years? That’s important. Did you pay the expenses? Did you have social interaction with the child? Did you take the child out? Did you go on vacations with the child?
Dale: If you did those things they would be counted against you because you were nice to these kids. Then it’s counted against you.
Lorne: That’s right. That’s right.
Dale:What if you ignored the kid? Would that be a defense?
Lorne: Probably, better. Are you interested in the child’s welfare? Did you go to Parent/Teacher interviews? Did you go to sporting events? These are all things. We have a case where there is a similar type of situation.
Our client, who is a guy, moved in with a woman who has three kids. He has two other biological kids, but he moved in with a woman and her kids.
Dale:He’s probably paying support for those kids.
Lorne: He’s paying support for the biological kids. Now he’s exposed to support for her three kids because they broke up. His position is, “I was a nice guy.” She is going, “No you weren’t. You were acting as a parent.” It’s a dilemma.
Dale: How do judges view those cases? There must be a bit of eye-rolling there in some of these cases.
Lorne: No. Not at all. If you move in with somebody there’s no eye-rolling.
Dale: Yes, but nobody knows this, Lorne. You can just move in with somebody and suddenly there you are on the hook.
Lorne: You’re on the hook. It’s not automatic, but let’s say you’re together for… It’s based on the duration of the relationship. It’s based on your role. It’s not as though as soon as you move in, that’s it.
Dale: No. I understand that.
Lorne: I have friends who are separated. They are paying support for three kids. They are involved in a relationship with somebody else who has kids and they want to move in. I’m saying, “Look. If you move in, this is a danger. You may end up having to pay support for five kids.”
Dale: Yes. If paying support for three kids was no fun, imagine how much fun it would be to support five kids.
Lorne: Not only that. Let’s say you move in and you have a relationship and then you’re nice to the
kids and involved with the kids. Then the relationship breaks up. You move out. You can’t say, “Okay. That’s it. I’m not Loco Parentis. I’m not responsible.” You can’t terminate it.
Dale: I doubt anybody has ever said that I’m not Loco Parentis.
Lorne: People say…
Dale: Lawyers would say that. People don’t talk like that, Lorne. They just say, “I want out.”
Lorne: They’ll say, “I want nothing to do with the kid.” Okay. Do you know what the answer is? Too
late. It’s too late.
Dale: Then the law considers… I’ll use a traditional relationship. The law considers that the guy who moved in with the woman who had two kids, which is one of several parameters I’m sure, is considered to have lived common-law with the person. Is that it?
Lorne: Well, common law is three years. So that’s different. Common law is three years.
Dale: So it doesn’t have to be…? Could you get hooked at less than three years I guess is what I’m asking?
Lorne: It’s not impossible. It’s not impossible, but it’s unlikely because it’s less than three years. If you
do have to pay support, maybe it will be for a very short duration. If it’s less than three years, it’s a harder argument for the recipient to argue.
If someone moves in and they were together for a year, it’s hard for the recipient to argue that he acted as a parent for a year. As I said, one of the aspects of the test is, the longer you are together, the more exposure you have.
I’ve had a case where, again, the guy was acting as a nice guy, but they were together for ten years. He barely had anything to do with this child. The biological father of the child was involved.
My guy had almost nothing to do with this child, but the judge said, “Too bad.” He had to pay support. So she got support from him. Full support and she got support from the biological father. Full guidelines. It’s as if two parents are paying full guideline support for this child.
Lorne: Yes. Wow.
Dale:That is a lot. Well which brings up the whole notion of if you just move in common law with someone and it’s deemed to be common law because you’re living with them after three years, what recourse does a partner have in a situation like that, generally speaking? No kids.
Lorne: No kids?
Dale: No kids.
Lorne: Okay. So that’s more of a spousal support question. If they are together for three years, there is
some kind of economic dependency, then you are common law. It’s very possible that one partner would have to pay support to the other partner.
Lorne: I have a situation where it’s a same-sex couple. Exactly that. They moved in together. They
were together for four or five years. One party is making a lot of money and the other party is not. They are common-law so there is a support obligation.
Dale: So anybody that thinks when you get involved in a common law relationship that you can
simply walk away from it, maybe you will get away with it as it were, but there are obligations.
Lorne: That’s right. When you say get away with it, you mean walk away?
Dale: I mean walk away and not pay.
Lorne: Right. You have to cross your fingers and hope that the other spouse doesn’t come after you.
Dale: If they had similar incomes there would be a lesser argument, I guess.
Lorne: Oh yes, because it’s based on need.
Dale: It again goes back to the word. The important word: Need.
Lorne: Right. It’s based on the financial circumstances of the party. If they are both basically
equivalent then it’s a much harder argument obviously.
Dale: Yes. Okay.
Dale:Lorne Fine, our divorce and family lawyer is here to answer your questions on those areas of law. Let me give you the number first off: (416)-360-0740 or (866)-740-4740.
That’s Lorne, leafing through all of his law books here getting ready. He’s got his pen in hand and we’re going to talk to Sam in Brantford. Sam, do you have a question for Lorne Fine?
Sam: Yes. I have two situations. When somebody is paying spousal support to the other person and they separate and that individual gets married, why is it that the person who is receiving the money, once they get married, they still get support from the individual? If they are married again, they are getting financial assistance from the person that is married to them.
Lorne: So the recipient spouse gets remarried.
Lorne: And you want to know why that recipient spouse still gets support?
Sam: Exactly. From the first marriage.
Lorne: By getting married again is a change in her circumstances. The payer can go to court and say
that the quantum of support should be reduced because there has been a change in circumstances.
Maybe she doesn’t need as much support. Maybe she married somebody who is wealthy. It’s all facts that the court would consider whether the current level of support is appropriate. You want to know why the recipient should still get support.
Sam: This happened to me. What should take place is her financial situation should be taken into account when the new person gets married to her.
Lorne: So if she marries a very wealthy person and she no longer needs support, then you’re right. The
court would be inclined to seriously reduce it or perhaps terminate it. It depends on many factors.
The length of your relationship. The roles during the relationship. Maybe what her circumstances are. Her health and so on. So you’re absolutely right. It’s possible the court my seriously vary the quantum of support or end it. It depends on her situation.
Sam: I was told at the time that there is a law in the divorce court and divorce papers that remarriage does not constitute a situation where support has to stop.
Lorne: It doesn’t. You’re right. It doesn’t. Just because the recipient gets remarried, doesn’t mean
support is going to stop.
Dale: It doesn’t extinguish the duty.
Lorne: It doesn’t extinguish the duty. It might be…
Sam: I think what should be in there is that if the person is wealthier than the situation she was in before, why would she need support?
Dale: Then you go to court and argue that.
Sam: I tried.
Lorne: That’s right. You go to court and you say the recipient doesn’t need that much support
anymore because this is her financial situation. Her financial situation is better than mine. Either vary it to a low amount or end it.
Sam: I tried and they said that the remarriage does not constitute… That’s what it says in under the laws of the divorce papers.
Lorne: So we’re agreeing with you. When someone gets remarried, it doesn’t end support, but it’s a
ground to vary support, possibly.
Sam: Okay. The other thing is, if the individual… This is not my situation, but if the individual moves in with a lady with two kids and she’s getting financial support from the previous husband who is the natural father of these two kids.
Someone moves in with this woman with two kids. Why does that individual who is moving in have to pay for those two kids if she’s already getting support from the ex-husband?
Lorne: Okay. As we said earlier, if this person stands in loco parentis. If this person acts as if he’s the
natural father for these children… So if he’s involved in their welfare. Let’s say he goes to Parent/Teacher interviews or he goes to sporting events.
If he acts like an involved parent it’s very possible that he could be exposed to child support if they separate.
Sam: So in other words, the kids are going to get money from the previous father and the new father, or supposed father.
Lorne: Right. The recipient is the mother. You’re paying support on behalf of the children. It’s the
children’s right to get support. The question is how is support calculated? There’s no hard and fast rules on how to the court is to calculate support for a step-parent.
You’re right. Either full support from both parents. Possibly a reduced amount from the second parent. It’s entirely possible for the mother to get support from both parents.
Dale: In this case, in your example, this would assume that the relationship went sour and the man
went away. The mother went after the man for that kind of support. If he moves in on the second day, he doesn’t have to start supporting the kids.
Lorne: Absolutely. If they separate and he leaves. They were living together for a long period of time.
A sufficient duration. He leaves. He treated the kids well during the duration of the relationship. He was actively involved. The mother then goes after that parent that leaves or that step-parent.
Dale: It’s up to the mother in this example to pull the trigger.
Lorne: It’s not automatic.
Dale: Yes. Not automatic here.
Lorne: I’m just saying what a court would do.
Sam: I’m just going to find somebody that has no kids.
Dale: Oh, Sam.
Lorne: That makes things easier because then you’re not exposed to child support.
Dale: All right. You don’t want to be in loco parentis.
Lorne: You don’t want to be in loco parentis. If you find somebody with no kids, he’s still exposed to
Dale: Well, we just talked about that as well. If the income levels are quite a bit different. If he makes quite a bit more money than she does after he leaves the common law relationship… This is very complicated.
Lorne: Very complicated and not so pleasant.
Dale: Human interaction could be very complicated and may I say expensive.
Lorne: Yes. Yes it can be. People don’t realize that. When you enter into a relationship and you break
up, you may have obligations that continue for years. Not just spousal support, but loco parentis.
Dale: It’s a contract or an implied contract. There’s some obligation.
Dale: Here’s Greta calling in on her cell phone. Greta, do you have a question?
Greta: Yes. I have a question for the lawyer.
Greta: We’re both seniors. He lives in Ontario. I live in Quebec.
Lorne: You’re talking about your husband?
Greta: No. Boyfriend.
Dale: Okay. Boyfriend.
Lorne: Your boyfriend lives where?
Greta: In Ontario. I live in Quebec.
Lorne: You live in Quebec, Okay.
Greta: He is moving to Quebec to live with me in my condo. Are there any consequences? I was under the impression that Quebec does not have common-law laws.
Lorne: You’re right. This is something you should ask a Quebec lawyer.
Lorne: I’m not familiar with the…
Dale: The laws are different.
Lorne: Yes. The laws are different. Quebec has a whole different codification of their laws. You
really should speak to a Quebec lawyer about your exposure and whether you need a cohabitation agreement or what you should be doing.
Dale: There are certainly are obligations involved. There can be.
Greta: Are there?
Lorne: I believe so, but like I said, I don’t know Quebec laws so it’s best for you…
Dale: You really need somebody admitted to the Quebec bar.
Greta: Okay. Even though he’s from Ontario and he’s just coming to stay at my place, he’s still going to keep his Ontario residence here.
Lorne: Like I said, I would think that if he’s with you for a long duration and he’s making a financial
contribution… If he lived in Ontario and he moved into your place in Ontario and he was making a financial contribution it’s possible that he could have an interest in the house. Like I said, I don’t know what the law is in Quebec.
Dale: You’re going to have to… Just so you know what you could be facing you should be talking to a Quebec lawyer.
Lorne: Right. So it’s a good idea just to call up a Quebec lawyer and run it by him or her and get a
quick consultation about what you should be doing.
Greta: Okay. I appreciate that.
Dale: Thanks, Greta.
Greta: Thank you so much.
Dale: Okay. Bye.
[Announcer: Goldhawk Fights Back for You airs Monday – Friday 11:00 – 1:00 on AM 740 Zoomer Radio.]
Dale: Here are the numbers on Goldhawk Fights Back. Lorne Fine is here. Our divorce lawyer answering your questions. (416) 360-0740 or (866) 740-4740. We have Werner on the line from Whitby. Werner, do you have a question?
Werner: Yes, sir.
Dale: Go ahead please.
Werner: What does a marriage contract do for one person moving in with the other or vice versa? Can they be protected by a marriage contract?
Lorne: Okay. We discussed marriage contracts and domestic agreements on previous sessions. You
can go on the podcast on the site. You can listen to the broadcasts and you can also go on my website which is TorontoDivorceLaw.com and read about marriage contracts. If they are done properly, then they can be very effective. The key is…
Werner: It can protect you.
Lorne: I’m sorry?
Werner: It can protect you from being liable for the other person?
Lorne: You can deal with property. Spousal support is more difficult. They aren’t very effective as far
as spousal support is concerned.
Werner: What I’m talking about now is I have a friend. He met a girl. They are off and on. I said to get a marriage contract to protect him from being cleaned out and to send it to her. If she signs it, he should be safe.
Lorne: So it’s probably a cohabitation agreement if they aren’t married. If they’re going to live
together then you want a cohabitation agreement. It can deal with property so that one party can’t go after the other’s property.
Lorne: Spousal support, as I said, may not be so effective.
Werner: No. There’s none of that happening.
Lorne: If there are any children involved, the court’s not bound by those terms dealing with child
Dale: So it’s a property issue.
Lorne: It’s a property issue. Yes. You can’t say in a marriage contract or a cohabitation agreement if I
move in with you and you have two kids, I’m not going to pay child support at any time. That’s not going to work, but you can say, if I move in with you and we split up, then you can’t have my property. You can provide for that.
What’s important is that the contract is signed, in writing, witnessed, each person has independent legal advice, each person has a lawyer and you have full financial disclosures. You disclose your income. You disclose your assets and your liabilities. If you disclose all of that and it’s done properly, then it is an effective tool.
Dale: Werner, thanks very much for the question. I hope that helps your friend. Here’s Joseph in Mississauga. Joseph, do you have a question?
Joseph: Yes. I do, sir. My question is that my son is legally separated from his wife, but they remain friends. My son now has a girlfriend. Apparently, my son and his wife, although they are legally separated, they still have an agreement that each…
Whenever one of them passes, the other will get everything. How true is that? What happens to the girlfriend? Is she entitled to anything? There are no children involved.
Lorne: So if there is a will, it is still effective. If they have reciprocal wills. If each person is the
beneficiary of the other person’s will…
Joseph: I believe so.
Lorne: Then that’s who the beneficiary is. The girlfriend would not be entitled to a share of the estate.
Joseph: Good. Thank you, kindly.
Dale: All right. Okay. Thanks very much. I’m just carrying on with this example. If the pair who are estranged with the legal separation got divorced and then the man turned around and married the girlfriend, as our wills and estates lawyer will tell you, the marriage revokes the will. Then you’d have to start all over again with the girlfriend.
Lorne: Right. The danger is that some people have a separation agreement. Don’t get divorced and
they think the separation agreement revokes the will. It doesn’t.
Dale: It doesn’t.
Lorne: So, I always tell my clients right off the bat to get a new will.
Dale: You don’t want a separation agreement that goes on for years, do you? Isn’t that kind of a bad situation?
Lorne: Some people don’t care if they get divorced. Some people say they’re not going to get
remarried anyway, so they’ll just separate…
Dale: Yes, but then they meet Mr. Right for crying out loud and all of that changes.
Lorne: Or they just live with Mr. Right instead of marrying Mr. Right.
Dale: Here’s Shelly calling on her cell phone. Shelly, do you have a question?
Shelly: Yes, I do. My question involves a divorce that we’ve already had. We share a child together. He is no longer in the picture. He does pay support through the FRO. My question is this, because we do not see him anymore, how would we be able to get a hold of him when he’s ready to go to university for payments that way?
Lorne: So your child is now a minor and you’re concerned that when the child goes to university that
you want to increase the quantum of support. I guess your agreement doesn’t provide for that, right?
Shelly: The agreement stops when my son hits a certain age and I guess it would be 18. It wasn’t in the agreement anyways. I myself have been putting away through an RESP for him, but my thoughts are why should I have to shoulder the whole burden of university costs?
Lorne: Well, you don’t. He should be paying his proportionate share of those expenses. They are
called Section 7 Expenses or Special and Extraordinary Expenses. You’re right. He should be paying his share. How can you get in touch with him?
Shelly: Yes. We have no idea where he is.
Lorne: Right. Well you’re going to have to go back to court and vary the agreement for him to
provide his proportionate share of the university expenses.
Dale: You need that amended and written down.
Lorne: Right. Either by a court order or an agreement.
Shelly: Now, how does anybody get a hold of him? I called the FRO about it and the FRO said we can’t release any of that information.
Lorne: Right. Well you would have to start a court application to maybe serve a relative of his and
say that it will come to…
Shelly: I have no idea. It’s been so long now, that none of them tended to stay in one spot.
Lorne: You can’t find a relative?
Shelly: I really have no idea.
Lorne: Does he drive?
Shelly: He does and I heard he was a truck driver.
Lorne: Okay. So you could do a driver’s license search. There are certain individuals that are qualified
to do a driver’s license search. Maybe find his address that way.
Shelly: Would I have to get a lawyer for that? Would the lawyer have to do this kind of search? Can the lawyer do that because my concern is that we couldn’t find him?
Lorne: It’s not a lawyer. Only some people, because of privacy issues, some people are authorized to
do it. I know that if I ask my process servers to do it, they have their people that can do a driver’s license search.
Dale: It’s a special professional by itself. It’s like a detective isn’t it?
Lorne: Yes. It’s like a process server.
Shelly: Detectives couldn’t do it, I don’t imagine.
Lorne: I’m not sure of the exact designation, but there are certain people that are authorized to do a
driver’s license search.
Dale: So you get a person like that through a lawyer.
Lorne: Through a lawyer who would contact their process server and there are skip tracers. People
who track down other people.
Shelly: Okay. So as long as we could find him then.
Lorne: Yes. Especially if he’s a truck driver and he has a driver’s license you should be able to find
where he is.
Dale: Shelly, thanks very much for the question. Here’s George in Toronto. George, I’m almost out of time, so please be quick.
George: I know. Good afternoon. I’ve talked with you many times. I have a question for the lawyer, Dale.
Dale: Yes. Go ahead please.
George: My son is processed for divorce.
Lorne: I’m sorry. I didn’t hear that?
George: My son, my son.
George: He’s asking for alimony from his wife. She makes a lot of money. I don’t know if she doesn’t want to pay the money, what should we do?
Lorne: I don’t understand the question.
Dale: I’m sorry, George. I can’t. I’m going to have to say goodbye. You’ll have to try again or send me an e-mail if you can at FightBack@Goldhawk.com. We’re just out of time and I just couldn’t catch the gist of what he was trying to say.
Lorne: If he wants he can send me an e-mail at LFine@TorontoDivorceLaw.com or go…
Dale: Okay. If we get it, I can forward it to you. All right.
Lorne: Or go online at TorontoDivorceLaw.com and you can get my information.
Dale: Lorne, thanks so much for coming in and bringing your book. I would like to thank your book as well. Bring in all your law books.
Lorne: I love my books.
Dale: Most lawyers do, don’t they? That’s how it goes.
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