Maclaren Corlett (Lawyers Est. 1873)

There is a widely held myth by many that the obligation to pay child support ends once a child reaches the age of 18, the age of majority. Not so. It, in virtually all cases, continues much beyond that age, and if a Court Order or separation agreement is silent on the date when child support ends, it almost certainly will not come to an end at age 18 and will continue beyond that age with no certainty with respect to when it will end.

Under the Divorce Act, which covers the situation of most couples who were married, the support paying spouse is required to pay child support for as long as a child is a “child of the marriage,” a special phrase which the Divorce Act defines as being a child who is either,

1. A child under the age of majority (18 in Ontario) who has not withdrawn from his or her parent’s charge (in most cases this means, lives at home and is going to school); or
2. A child over the age of majority but is unable by reason of illness, disability or other cause, to withdraw from his or her parent’s charge or to obtain the necessaries of life [once again in most cases this means a child who is at home (or away from home to attend school but otherwise lives at home) and is going to school]. “Other cause” in other words is the child being a full-time student.

Under the Family Law Act which covers the situation, in Ontario, of couples who were not married but have children, the support paying spouse is required to pay child support for as long as the child is not married and is:

1. A minor (a child under the age of 18 – for 16 and 17 year olds there is an additional qualifier that the child has not withdrawn from parental control); or
2. Is 18 years of age or older and is enrolled in a full-time program of education, and has not withdrawn from parental control.

Under both the Divorce Act and the Family Law Act it is clear that child support definitely does not end for a child who turns 18 and is still in school. Beyond that, neither piece of legislation states just when child support ends for a child who continues his or her education. It was for a long time thought that child support should end when the child obtains his or her first post-secondary school degree or diploma, based on the thinking that the child should be then well able to enter the job market and secure work. However, that reality has well since ended and most young people are now required to obtain at least a second degree or diploma in order to make themselves competitive in the current job market. There is no certainty therefore, absent a specific age included in a Court Order or separation agreement, just when child support will end. For a child who remains in school, it will certainly not end at age 18. That much is clear.

The parents of a child can make things clear for themselves, whether as a child support payor or a child support recipient, by including in their separation agreement and/or Court Order that child support will end at a specific age even if a child wishes to stay in college or university and pursue further education. A commonly chosen age for this purpose is age 22 or 23. It could be an older age or even a younger age, although if a younger age it may not cover the child to the end of his or her first degree or diploma making it vulnerable to being overturned by the court.

Lesson to be learned: it is best, if not essential for purposes of certainty, that in one’s separation agreement and/or Court Order the circumstances, and age, that will mean an end to child support be expressly set out in detail in the agreement or order. To ensure they are, and are correctly expressed, one is well advised to seek the assistance of a lawyer of your choice who is experienced in family law matters.