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Definition of Residence for Child Support Purposes

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Anonymous Asked:

I have two questions:
Question #1: How is residency determined (definition) for the purposes of child support. My (ex)husband and I separated in September 2010 but we are both owners of the family residence in Quebec. He accepted a job in Ottawa, Ontario and has been living with his sister in Ottawa since September 2010. In an interim judgement he was granted access to the family home every 2nd weekend for the purpose of access to our children (while i vacated the home). The judge then determined that his residence was in Quebec (not Ontario) and child support payments were determined based on his residence being in Quebec. Can you please tell me what is the reasoning behind this decision - I believe the child support payments should be made based on his obvious residence in Ontario? How is residency determined in this matter? We still have not yet finalized the divorce and I believe I am entitled to child-support arrears.
Question #2:
Our son turned 18 years old in March 2014. He was enrolled in cegep but had difficulties in his first semester. He caught pneumonia and ended up missing too many classes to pass the semester - he was/is depressed and withdrawn and I was very concerned for his mental health. I convinced him to see a therapist and he is starting to become more positive but still not outgoing enough to be able to return to school or start a job for the first time. Even though he is 18 years old, he clearly has no way of supporting himself - is there a way to have child support continued although he is over 18 and not in school. What documents or proof do I need to provide to the courts to show that he still requires support?

I would be very grateful for any help you can provide me.

Thank you

Expert Comment:

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Andrew Heft
6 years ago

Residency, in terms of establishing the applicable tables for Child support is not defined in the Divorce Act aside from a mention that it is based on “habitual residency”. As such, the Courts have needed to interpret it and have offered an informal definition that is usually quoted as follows: habitual residency “means more than the fact of having a temporary place to live, and less than the legal concept of domicile. It therefore suggests some degree of permanency without the notion of exclusivity which is proper to the concept of domicile”.

There is therefore no clear answer as a Court would have to evaluate if your ex-spouse is established in a permanent fashion in Ontario based on the facts provided. To do this, the Court would normally consider for example, whether he has opened a bank account in Ontario, changed his driver’s licence, registered for Ontario health care, started declaring his income taxes as an Ontario resident, etc. It is the answers to these questions that would determine if he has permanently moved to Ontario or is only temporarily residing there. If your ex-spouse was also travelling back to Québec on a regular basis, that could also be an indicator that he was not permanently established in Ontario.

Without the actual judgment it is difficult to establish on what grounds the Court decided that your ex-spouse was a Québec resident. It is also possible that the issue of residency was never raised and that the Court established Child support based on admission by both parties that your ex-spouse was habitually residing in Québec.

In answer to your second question, it is possible to obtain child support for your 18 year old son as long as he is still under your care and not able to provide for himself because of his illness. In order to do so however, you will be obliged to prove that he is ill and incapable of providing for himself because of this illness. In this case, a medical report or expertise will most likely be needed to establish these facts.

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