Termination of Child Support due to Unilateral Termination of Relationship With Payor Parent

Kathryn Tweedie

In western Canada, when the court is asked to consider whether a child of 18 years of age or older remains entitled to support due to pursuit of post-secondary education, the Farden Factors are applied in making that determination.  Proof of attendance at a post-secondary educational institution, in and of itself, without more, is insufficient to establish continued entitlement to support.  Rather, whether or not attendance at a post-secondary institution will be sufficient cause for finding that a child remains entitled to support  requires examination of all of the circumstances.  The Farden Factors, being a non-exhaustive list of relevant considerations, are set out in the British Columbia Supreme Court case of Farden v. Farden, 1993 CanLII 2570 (BCSC), and include the following:

  1. whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies;
  2. whether or not the child has applied for or is eligible for student loans or other financial assistance;
  3. the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;
  4. the ability of the child to contribute to his own support through part-time employment;
  5. the age of the child;
  6. the child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;
  7. what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;
  8. at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.

All of the relevant circumstances are to be taken into consideration, without any single factor being determinative or carrying disproportionate weight.  Cases where courts have terminated child support as a result of a child’s unilateral termination of his/her relationship with a payor parent are few and far between.  The Saskatchewan Court of Queen’s Bench recently did just that in the case of Magotiaux v. Magotiaux, 2016 CarswellSask 832 (Sask. Q.B.).  These cases usually turn on their particular facts and seem to require egregious circumstances.  In this case, there was overwhelming evidence that the 18 year old daughter had unilaterally terminated her relationship with her father, without reason, despite the father’s significant attempts connect with the child.  Courts must be careful to ensure that the termination of the relationship is in fact unilateral and that the parent has made repeated and continual attempts to reach out to and connect with the child.  Only minimal effort on the part of the child is required, as opposed to having to maintain a high quality and/or close relationship with the payor parent, which low standard should be attainable for most.

The test for termination is conjunctive, meaning that both components are required.  Specifically:

  1. the child’s unilateral termination of the relationship with the parent; and
  2. no justification or legitimate reason for the termination.

This is an extremely rare instance of the court terminating child support as a result of the child’s unilateral termination of his/her relationship his/her parent, which presently will only be done in the clearest of circumstances.  Accordingly and since the determination of appropriate support arrangements for adult children pursuing post-secondary studies tends to be rather complicated, these issues are better resolved through mediation, arbitration or other dispute resolution process outside of court, where creative options for resolution can be explored.

2018-12-11T15:39:43-07:00December 18th, 2018|

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