H. Commencement and Duration of Orders; Effect of Reconciliation

Author:Julien D. Payne - Marilyn A. Payne
Pages:424-429
 
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1) Normal Commencement Date

In the absence of any evidence that the payor needs time to organize his affairs, a child support order should ordinarily come into effect not later than the first day of the month immediately following the judicial decision.241

2) Fixed-term and Review Orders

Section 15.1(4) of the Divorce Act specifically empowers the court to make an interim or permanent child support order for a definite or indefinite period or until the happening of a specified event. The court may also impose such terms, conditions or restrictions in connection with the interim or permanent order as it thinks fit and just. Where the financial circumstances or prospects are uncertain, the court may direct that the issues relating to child support be reviewed after a designated period of time.242Subject to any judicial directions to the contrary,243a child support order declared subject to review after a designated period of time does not require proof of a change of circumstances in order for the review to be undertaken and the situation reassessed.244The fact that an order is declared reviewable after a specific period of time does not preclude an earlier application to vary that order pursuant to section 17 of the Divorce Act and section 14 of the Federal Child Support Guidelines.245A review order is inappropriate to deal with a child’s anticipated graduation from high school. The proper procedure in such a case is to bring an application to vary if a material change in the child’s circumstances can be demonstrated after graduation.2463) Duration of Order

Subsection 3(2) of the Federal Child Support Guidelines empowers a court to override a provision in a separation agreement that stipulates termination of child support at the age of twenty-one.247

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Child support may be ordered to be paid until a specified date, unless the child finds full-time employment before that date, in which event the child support payments shall terminate on the last day of the month in which the child commences full-time employment.248An order for child support made pursuant to the Divorce Act does not automatically terminate upon the child’s reaching the age of majority, unless the order expressly so provides. The order will remain in effect until it is varied.249The Divorce Act offers little guidance concerning the duration of orders, but judicial decisions demonstrate that child support rights and obligations may extend beyond the age of majority.250The court may designate a specific period during which support shall be payable.251For example, a court may direct that support shall be paid as long as the child attends school, college or university,252or until the child reaches a specific age,253which may be variable according to whether the child pursues post-secondary education or training,254or marries, or until the child has obtained employment and is self-supporting, whichever event shall occur first.255In an Alberta case, where a child had emotional problems and required special care, payments were ordered for his support until he attained the age of eighteen years or became self-supporting, whichever shall last occur.256A court may order that support shall terminate after a child’s completion of four years of university education, but may further direct that either parent shall be at liberty to apply for a review of the child’s status, if post-graduate studies are thereafter envisaged.257Support payments have also been limited to the period during which the child attends school and continues to reside with the custodial parent.258An arbitrary limitation to this effect on the right to child support is unwarranted.259Orders may be and have been granted by the courts that provide for child support, notwithstanding that the child does not reside with the custodial parent.260

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An order that requires a parent to pay monthly support for an "infant child" terminates once the child attains the provincial age of majority. Arrears do not accrue under such an order after the child attains the age of majority. Any extension of the child support obligation requires an application to the court and the onus falls on the applicant to satisfy the court that the adult child remains unable to withdraw from her economic dependence on the parents. The Director of Maintenance Enforcement has no authority to extend the order; that authority rests with the court.261The duration of a child support order may be extended if the child decides to undertake post-secondary studies,262but a court may decline to order support where the application is not brought until several years after the completion of post-secondary studies.263

4) Stay of Order

A court may stay an order for child support during weeks when the obligor’s receives no income or benefits and may direct the obligor to immediately notify the Director of Support Enforcement of any changes in the obligor’s employment status.264

5) Future Child Support

In appropriate circumstances, in the past, courts have fixed child support to be paid in the future, thereby creating an accumulating debt obligation.265It is open to question whether such orders are consistent with the Federal Child Support Guidelines.266If the cost of day to day support for the children comes to less than the amount of child support paid, the surplus should be diverted to a trust for the children and should not be intermingled with investments in the name of the payee spouse and her new partner.267

6) Effect of Spousal Reconciliation

Judicial decisions are not consistent with respect to the effect of spousal reconciliation on pre-existing spousal and child support obligations. In Ontario and Saskatchewan, a resumption of cohabitation in an ultimately unsuccessful attempt at reconciliation has been held to terminate rights and obligations under a pre-existing support order.268In British Columbia

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and Manitoba, on the other hand, it has been held that a valid support order cannot be nullified by anything other than a further order of a court of competent jurisdiction.269

7) Effect of Obligor’s Death

Child support obligations have sometimes been declared binding on the obligor’s estate, thereby extending the duration of child support beyond the obligor’s death.270In the absence of any specific direction that the order shall survive the death of the payor, a child support order terminates on the death of the payor271except in so far as there may be a statutory provision to the contrary.272Where a payee spouse sought to vary a subsisting order for the support of her disabled child but died prior to the hearing, the executors of her estate were held entitled to proceed with the application because the periodic payments were not conditioned...

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