C. Applicable Criteria under Divorce Act and Federal Child Support Guidelines Respecting Children under and over the Provincial Age of Majority

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 44-45

Page 44

A court may order support for a child under the age of majority who has not withdrawn from his or her parents’ charge or for any child over the age of majority who is unable to withdraw from his or her parents’ charge or obtain the necessaries of life by reason of "illness, disability or other cause."³¹"Necessaries of life" have traditionally included shelter, food, clothing, household equipment, and medical treatment, but section 2(1) of the Divorce Act should not be narrowly construed as meaning bare necessities, such as food and shelter.³² The phrase is sufficiently broad to encompass a reasonable program of education that will prepare an adult child to function effectively in an increasingly technological society.³³

The words "or other cause" are not to be construed ejusdem generis with the preceding words "illness, disability."³⁴An order for the support of an adult child will not be made unless there is sufficient evidence to establish that such an order is justified.³⁵Each case is determined on its own facts and all of the circumstances must be must considered in determining whether a child remains a child of the marriage.³⁶

Page 45

With the implementation of the Federal Child Support Guidelines on May 1, 1997, a court has the jurisdiction to determine the amount of support for a child who is of the age of majority or over in accordance with the Guidelines applicable to a child under the age of majority or, if the court considers that approach to be inappropriate, the court may fix an amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.³⁷

[31] See Divorce Act, s. 2(1); Mallen v. Mallen (1987), 10 R.F.L. (3d) 156 (B.C.S.C.); Briard v. Briard, 2010 BCCA 431; Welsh v. Welsh, [1998] O.J. No. 4550 (Gen. Div.).

[32] Briard v. Briard, ibid.

[33] Barber v. Barber (1995), 18 R.F.L. (4th) 282 (Nfld. S.C.).

[34] Jackson v. Jackson, [1973] S.C.R. 205; Keen v. Keen (1990), 30 R.F.L. (3d) 172 (Sask. Q.B.); compare Matthews v. Matthews (1988), 11 R.F.L. (3d) 431 (Nfld. T.D.).

[35] Passerello v. Passerello, [1998] O.J. No. 2792 (Gen. Div.).

[36] D.M.H. v. C.M.M., 2011 SKQB 104; Montalto v. Montalto, 2011 ABQB 574.

[37] SOR/97-175, s. 3(2).