Are you seeking to end your child support for an adult child? Beware a retroactive variation
Child support is supposed to end when a child becomes an adult and no longer requires support. Generally, this occurs when a child turns 18 years of age and is no longer pursuing any form of education. What many payors learn when their child turns 18 is that a child support order does not automatically terminate – you must change the court order for support if you do not have the consent of the recipient to change support. In most cases, changing a court order for support requires a motion to change in the court that made the original order.
If you are considering bringing a motion to terminate support because your child is no longer in need of support, you should be mindful of the possibility that the recipient of support may ask the Court for a retroactive variation to support if you have not been adjusting support as your income has changed. By way of a hypothetical example, if a father has been paying support under a 2010 order based on an income of $100,000 per year, and his income increased to $200,000 in 2015, a court could order an adjustment to support to reflect the increased amount that the father should have been paying since 2015. If it has been a while since you updated your support, you could be facing a substantial retroactive award.
Previously, courts held that once a child is no longer entitled to support, the recipient is precluded from seeking a retroactive variation. However, in the recent Supreme Court of Canada decision, Michel v Gaydon SCC 24, the Supreme Court changed the law to allow recipients to seek a retroactive variation of support in cases where the child is no longer entitled to support at the time of the variation application.
The important lesson from Michel vs Gaydon is for support payors to be diligent in adjusting support. It is also necessary for support payors to weigh their options carefully before bringing a motion to change. It may be better to achieve a negotiated resolution on support rather than to seek a litigated resolution by way of motion.
If you reside in the Guelph or Kitchener-Waterloo area and have questions about changing child support and family law, please contact Purves-Smith Law for a consultation.