Do You Owe Child Support in a Gap Year?

Published on 29 August 2022, 07:22:56 AM

You didn’t mind supporting your kids when they were young. But paying child support for a graduate who takes a gap year? Taking that decision into his own hands didn’t go as expected for one Ontario father.

Arbitration Went Well Until…

Mid-divorce is not the time to get creative, Ontario Superior Court of Justice told “Yan” and his divorcing spouse “Louisa” (names changed to protect their identities). Yan and Louisa seemed content with the outcome of their mediated divorce. But the ink wasn’t even dry on the decree nisi (proposed divorce order) when Yan decided to stop child support payments. That started a new round of mediation and arbitration.

Deciding When a Minor is Independent

As far as Yan was concerned, their son Ted was well on his way to independence. The young man, just 17, had graduated from high school and been accepted into university. With both parents’ consent, he planned to travel and work for a year before going back to school.

Child and Spousal Support Linked

Ted’s gap year was Yan’s rationale for ending child support. But the issue was far bigger, as the terms of their divorce order revealed. The Ontario family court order provided for Yan’s spousal support payments to be reviewed when his child support payments ended or Sept. 1, 2022, whichever came first. So when Ted graduated from high school in June 2018, Yan took it upon himself to halt his child support.

Appealing a Family Arbitration Decision

Naturally, Louisa protested and back to the family mediator they went. The mediator sided with her, as did an arbitrator. It could have ended there, but Yan applied for leave to appeal to Ontario family court. Family law arbitration awards can be appealed on a question of law if the outcome would have a significant impact. Ending child and spousal support early obviously did, for both Yan and Louisa.

Court’s Decision Retroactive

It didn’t help Yan’s case that his income was 10 times that of his ex-wife, who had stayed home with their children. The arbitrator’s decision committed him to paying Louisa around $1.32 million in spousal support, plus child support, for the previous three years. Going forward, Louisa was owed 50% of his net disposable annual income.

Suspending Child Support for Gap Year

By now, Ted was in university, his gap year over. Because he was only 17 when he graduated high school and relied on his mother financially before he left home to travel, the arbitrator awarded him child support for the summer. Child support resumed once Ted started university and would continue until he graduated with his first degree. 

Child Support Not Terminated by Suspension

But Yan suggested that by suspending child support during the gap year, the arbitrator had actually ended his financial obligations to Ted altogether. The arbitrator and judge rejected that argument. Not only had Yan not provided full, frank and up to date disclosures of his financial status, but his efforts to avoid paying child support were not credible, the arbitrator ruled. 

Being Evasive Frustrates Arbitration

Yan had failed to meet his obligations to disclose information accurately and fully and he was evasive and argumentive, the arbitrator said. The judge had a quick rebuttal. As the Supreme Court of Canada had said many times, “Non-disclosure…is the cancer of matrimonial…litigation.” In fact, the couple’s separation agreement stated only that spousal and child support would be reviewed when Ted finished his first degree, not necessarily ended.

Using Business Corporation Goes Too Far

Yan had another unique argument. The proceeds of his commissions from selling commercial real estate belonged to his corporation, not him. It would be inappropriate to use the commission income to calculate alimony or child support. The money was intended for long-term investment and capital growth, not living expenses. Yan was “amassing corporate income for retirement purposes.” The arbitrator called that an illusion.

Overturning Child Support Termination

Regardless of Yan’s retirement plans, he still had a responsibility to support his ex-wife and children while they remained financially dependent on their parents. Prematurely ending Ted’s child support while he took a gap year and trying to use that excuse to have his spousal support payments reviewed, was Yan’s undoing. 

‘Overruled’ for Acting Without Court’s Permission

Yan had jumped the gun, the judge ruled. His actions were premature and a spousal support review was uncalled for. As Hungarian-American psychiatrist Thomas Szasz would have said, “Two wrongs don’t make a right, but they make a good excuse.’   

Apply to Ontario Family Court for Child Support

Axess Law’s Ontario family lawyers prepare your application to family court to change your child support amount. Licensed lawyers can video conference online from anywhere in Ontario 7 days a week, day or evening. Dial 1-877-522-9377 or in Greater Toronto 647-479-0118 or use our online booking form to make an appointment. Arrange an in person meeting at our Ottawa, Toronto, Scarborough, Vaughan, Etobicoke, Mississauga Winston Churchill or Mississauga Heartland law offices.

Click here to learn more about Axess Law’s family law services.

Photo by Orna Wachman|Pixabay.