By Lorne J. Fine
It's not easy being a paying parent without primary custody. While you're continually called on to ensure the financial security of your children, your relationship with them may sometimes suffer at the whim of an ex-spouse who has turned them against you. So what can you do when the parent with legal custody has cut you off from your children? You might think your family lawyer now has an excellent argument for casting off - or at least reducing - your child payments, while throwing the burden back on your ex-spouse for their shoddy treatment of you.
But you'd be wrong.
In Ontario, child support payments are governed by the Federal Child Support. These Guidelines work to ensure that a child of the marriage continues to enjoy a "fair" standard of living upon separation and divorce. Surprisingly for some, the Guidelines do not work to "punish" a parent for misconduct against the other parent in child custody cases. On its face, that might not seem fair, particularly in instances where the payor parent without legal custody is actively being isolated by the custodial parent.
At times, even the courts have expressed frustration at this state of affairs. As the judge in the British Columbia decision of Robinson v. Domin noted:
The significant factor, in my view, which makes the application of the Guidelines somewhat unfair in these unique circumstances is the denial of access to the children since the time of separation of the parents... As far as I can determine, however, there is no provision in the Guidelines for reducing the [child support payments] for this reason.
The reason for this state of affairs lies in the fact that child support is the right of the child, not the parent. Since the Federal Child Support Guidelines are meant primarily to serve the best interests of the child, Parliament and the courts have determined that to punish a recipient custodial parent through a reduction of child support would effectively work to punish the children who depend upon that support. In this respect, the battle over custody and visitation rights is deemed to have no effect on the obligation to provide child support.
But what if the child receiving the support is more mature - say, over the age of majority (18 years of age in Ontario)? Well, then, your family lawyer might very well indeed have a winnable argument for you. The child support guidelines do, in fact, distinguish between children over and under the age of majority. According to the Guidelines, where a child is over the age of majority, that child may no longer be considered a "child of the marriage" if they have withdrawn themselves from the charge of the parents for a variety of reasons, including the ability to provide for themselves. And if they're no longer deemed to be a "child of the marriage" according to the Guidelines, the parents are released from the obligation to provide child support payments.
As described by the judge in the Ontario case of Pohlod v. Bielajew:
The jurisprudence that holds that the failure of a child to maintain a relationship with one parent might disentitle the other parent from receiving child support for that child refers to "mature" children. Generally the child concerned has been a college or university student who may have some other sources of income but who expects a parent with whom the child refuses to have a relationship to contribute to the costs of the higher education for the child.
In recent child support cases, courts have tended to relieve the payor parent of their obligation to continue making child support payments when that parent has been rejected by the adult child for no apparent reason. So, in the end, it's not a case of what is fair for the payor parent who has been denied their visitation rights by a spiteful spouse with legal custody. For children under the age of majority, the determining factor for the courts is what is in the best interests of the child - and knowing that fact ahead of time will save you a great deal of unnecessary litigation expense down the line.
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This article is presented as general information only, for your enjoyment and curiosity, and should in no way be relied upon or considered as legal advice. The author does not, and cannot, warrant that this information will be of benefit to you in any way, as only your family lawyer will be in a position to offer you the appropriate legal guidance and supervision that you may require in circumstances specific to your child support case.
Lawyer Bio:
Lorne J. Fine is a Toronto family lawyer with extensive experience in divorce, child support, and custody cases. He heads up a boutique Toronto family law firm whose associate family lawyers provide customized and personal legal services for their clients. His web site may be found at www.TorontoDivorceLaw.com.
Toronto area residents may reach Mr. Fine for a free initial consultation at lfine@torontodivorcelaw.com or at (416)661-2066
http://www.torontodivorcelaw.com
