In a September decision of the Ontario Superior Court of Justice at Orillia, Mr. Justice Thomas Wood refused to enforce a provision of a Maryland separation agreement because it did not comply with Ontario's Child Support Guidelines.
The agreement ruled out continued payment of child support for a child over age 18 who had moved to Ontario with his mother and was enrolled in post-secondary education at an Ontario community college..
In 2003, the parties had entered into a marital settlement in the State of Maryland. The terms of the settlement were incorporated into a divorce judgment issued by the Circuit Court of Frederick County, Maryland. After the divorce, the mother moved to Ontario along with her three children.
The agreement provided that the husband was to pay child support in accordance with the Maryland Child Support Guidelines, which provide that support ceases upon a child reaching 18, whether or not that child pursues post secondary education.
Acting upon that provision of the Maryland Guidelines the father ceased paying support for the eldest child when the child reached 18, while the child was attending a full time program at a community college.
According to the Ontario Family Law Act, the provisons of a foreign domestic contract must comply with the law of the Province of Ontario, if it is to be enforceable. At the same time a domestic contract which makes reasonable provision for child support will be upheld notwithstanding the fact that its terms do not comply with the Ontario Child Support Guidelines.
The law in Ontario is well settled that parents have an obligation to support children enrolled full time in post secondary education and that there is no arbitrary age limit on this obligation.
Since the mother and the children resided in Ontario, the mother was entitled to apply to the Ontario Courts for support in accordance with the law of the province.
The court held that a child support arrangement which falls below that which would be provided by the guidelines absent some balancing provision benefiting the child is prima facie unreasonable. The court accordingly found a provision in the parties’ separation agreement providing that the Maryland Guidelines will apply to be unenforceable pursuant to the provisions of the Family Law Act.
The father, having fully participated in the litigation in the Ontario Court, had attorned to the jurisdiction of the Ontario court. The court therefore had the authority to make a binding order.
For full text, see Blagaich v. Blagaich.
- Shashi Raina, Toronto
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EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
1 comment:
The case is currently being reviewed by the Ontario Interjursidictional Support Order office. However, the Maryland law is speciific that they have contining jurisdiction over the order. It is not final yet.
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