Caring for the well being on the children is the number one prioririty, in th event of a seperation, decisions need to be made about the proper care of the children. You can make an application for an order for child support under section 15.1(1) of the Divorce Act to either the Superior Court of Justice or the unified Family Court if either you or your former spouse live in Ontario or accept the jurisdiction of the Court.
Courts use the definition child of marriage to determine who qualifies for child support. Child of marriage means a child of two spouses or former spouses, who at the material time, is under the age of majority and who has not withdrawn their charge or; is the age of majority or over and under their charge but unable, by reasons of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life. To seek the Court’s help for an order to vary child support under the Divorce Act was next to impossible in the past. This was outlined by the Supreme Court of Canada in S. (D.B.) v G. (S.R.) [2006] 2 S.C.R. 231, which stated: “where support, including retroactive support, is requested pursuant to the Divorce Act, a court will not be able to make a retroactive award if the child in question is no longer a “child of the marriage”, as defined in s. 2, when the application is made.”
Oddly enough, cases that were decided under the Family Law Act, however, allowed Courts to vary child support orders retroactively, even after the children are no longer “children of marriage”.
It seems unfair at the onset that Ontario Courts can have or lack the power to vary a child support order simply because of the choice of the Act that families used to start their long process of separation.
Thankfully, the Court of Appeal recognized this inconsistency and finally allowed the Courts to hear cases to vary child support orders retroactively, even after the children stop being “children of marriage” in October of 2017. In Colucci v. Colucci 2017 ONCA, 2017, a father sought an order rescinding the child support that he had not paid and was in arrears of over $175,000. The Court of Appeal concluded that the language of section 17(1) of the Divorce Act does not deny the court jurisdiction to vary child support after the children cease to be “children of marriage.”
Thanks to the comments made in the Colucci case, Ontario Courts now have the ability to hear cases to vary child support and render a decision under both the Divorce Act and the Family Law Act.
If you have any questions regarding a family dispute, please contact our experienced team at JEWELL RADIMISIS JORGE LLP.