H. Status of Applicant; Payment to Child

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 31-37

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An original application for interim or permanent child support may be made by either or both spouses or former spouses pursuant to sections 15, 15.1(1), and 15.1(2) of the Divorce Act. These sections apparently permit a joint application by the spouses or former spouses. The same is true of section 17(1)(a), which provides for the prospective or retroactive variation, rescission or suspension of a support order.⁵⁵Pursuant to sections 15.1(4) and 17(3) of the Divorce Act, a court may impose such terms, conditions, or restrictions in connection with the order as it thinks fit and just. A prospective obligor may apply to determine the child support entitlement and to have the amount of support fixed and payable on such terms, conditions or restrictions that the court may impose as provided by section 15.2(3) of the Divorce Act.

The Divorce Act does not give a child of the marriage any standing to apply for interim or permanent support in a divorce proceeding instituted by a parent⁵⁶or to apply to vary a child support order,⁵⁷although it seems an unnecessary burden to impose on a parent where the child in respect of whom support is sought is an adult who is not living with either parent.⁵⁸Non-spouses do not have standing to apply for child support orders under the Divorce Act and Federal Child Support Guidelines. An adult "child of the marriage" lacks the status to bring an application to vary a child support order obtained by a parent, even though both parents had previously agreed that periodic payments would be made directly to the child.⁵⁹

Where a consent order for child support and section 7 expenses has been granted in divorce proceedings, the payor cannot launch tort proceedings in the Small Claims Court against the adult child seeking repayment of the money on the basis of fraudulent or negligent misrepresentation. The Small Claims Court lacks jurisdiction to entertain the claim because the adult child, though a beneficiary, is not a party to the divorce judgment and

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to allow the action would fly in the face of section 17(1) of the Divorce Act which permits variation of a support order only on the application of either or both of the former spouses. Characterization of the action as a claim in tort constitutes a disguised attempt to vary the child support order which does not remove the statutory requirement to proceed in the proper forum against the proper party.⁶⁰Under the Divorce Act, 1968,⁶¹the court occasionally acted on its own initiative and ordered the payment of child support, notwithstanding that it was not requested or desired by the custodial parent.⁶²It is questionable whether such jurisdiction can now be exercised in view of section 15.1(1) of the current Divorce Act, which defines the jurisdiction of the court "on application by either or both spouses." However, some courts have concluded that child support may be ordered in the exercise of the parens patriae jurisdiction.⁶³While a child of the marriage has no standing to bring an application for child support under the Divorce Act, it does not follow that a court has no jurisdiction to order child support to be paid directly to the child on the application of either or both spouses or former spouses. There is no prohibition against such orders in either the Divorce Act or the Federal Child Support Guidelines. Furthermore, as stated previously, sections 15.2(4) and 17(3) of the Divorce Act specifically empower the court to impose such terms, conditions, and restrictions on its child support order as it deems fit and just. These provisions are sufficiently wide to permit a court to order direct payments of support to an adult child in exceptional situations where such a course of action is considered appropriate. In the words of Jackson J.A. in Burzminski v. Burzminski,⁶⁴"[w]hile a decision to pay child support, directly to the child, is not the norm, a court has a discretion to make such an order." It should not be forgotten that "child support is the right of the child."⁶⁵ Consistent with this right, section 11(1)(b) of the Divorce Act expressly provides that "[i]n a divorce proceeding, it is the duty of the court . . . (b) to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made." On occasion, the jurisdiction to make such orders has been denied: see Adams v. Adams⁶⁶ and M.V. v. D.V.,⁶⁷both of which cite the brief judgment of the New Brunswick Court of Appeal in LeBlanc v. LeBlanc.⁶⁸It is noteworthy that LeBlanc predates the implementation of

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the Federal Child Support Guidelines and accompanying changes to the Income Tax Act that render post-Guidelines child support orders payable in after-tax dollars. Under the pre-Guidelines regime, an order for the payment of periodic child support to the custodial parent would result in those payments being deductible from the payor’s income and included in the recipient’s taxable income. But these consequences would be negated by an order that provided for direct payments of support to the child instead of the custodial parent. In contrast, under the current Guidelines regime, it is immaterial from an income tax standpoint whether the support is payable directly to the child or to the custodial parent. In either event, it is payable in after-tax dollars and free of income tax liabilities in the hands of the recipient. It is perhaps not surprising, therefore, that the question of a court’s jurisdiction, if any, to order child support payments to be made directly to the child did not attract much attention from Canadian courts under the pre-Guidelines regime but has done so in the post-Guidelines era. Quite independently of income tax considerations, the decision of the New Brunswick Court of Appeal in LeBlanc v. LeBlanc has not been followed in other provinces. Furthermore, the New Brunswick Court of Appeal in Glaspy v. Glasby⁶⁹ has itself now concluded that, although such cases are not numerous, there is judicial authority that supportsnotion that child support payments may be ordered to be made directly to an adult child who is attending university away from home. Even if a court may order that the child support should be paid directly to the child,⁷⁰such an order should not be made where the obligor’s past conduct manifests financial control and manipulation,⁷¹where undue friction would thereby be caused,⁷²where the child’s entitlement to student loans may be detrimentally affected,⁷³ or where the applicable provincial table amount of support is ordered for two or more children, only one of whom is an adult child attending college.⁷⁴A court may refuse to order that payments be made directly to an adult child where there is no evidence that the child favours this⁷⁵and the only reason raised is the payor’s animosity to his or her divorced spouse.⁷⁶A court should not order support payments to be made directly to a child whose money management skills are open to question.⁷⁷ Where the children reside with the custodial parent who provides their basic needs, a court should not order child support payments to be made directly to the children, unless the custodial parent consents or there are exceptional circumstances, such as the actual inability of the custodial parent to handle finances.⁷⁸A court may order child support to be paid directly to the child during the months that she attends an out-of-town post-secondary institution but require the pay-

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ments to be made to the parent during the summer months when the child is living with that parent.⁷⁹Payments directly to the child may be ordered where it might be beneficial to the relationship between the payor and the child.⁸⁰Although payments for an adult child attending college may be ordered to be made to the child directly,⁸¹the court may direct that the payor shall not establish personal contact without the child’s consent.⁸²Where a parent is ordered to pay the applicable provincial table amount of support in addition to a contribution to an adult child’s costs of post-secondary education under section 7 of the Federal Child Support Guidelines, the court may direct that the table amount shall be paid to the parent with whom the child is living, but that the contribution to the costs of post-secondary education shall be paid directly to the child.⁸³Parents may structure their financial affairs and consensually provide for the support of their children in various ways that lie outside the parameters of the Divorce Act. Parents could consensually discharge their child support obligations by determining the appropriate amount of support under the Federal Child Support Guidelines and by providing an equivalent payment by way of dividends issued to shareholder children through a professional corporation. It is very doubtful, however...