F. Children over Provincial Age of Majority

Author:Julien D. Payne - Marilyn A. Payne
Pages:382-402
 
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1) Relevant Provisions of Divorce Act and Federal Child Support Guidelines

For the purpose of determining the right of adult children to child support, section 2(1) of the Divorce Act defines "age of majority" and "child of the marriage" as follows:

Definitions

2. (1) In this Act,

"age of majority"

"age of majority", in respect of a child, means the age of majority as determined by the laws of the province where the child ordinarily resides, or, if the child ordinarily resides outside of Canada, eighteen years of age; . . .

"child of the marriage"

"child of the marriage" means a child of two spouses or former spouses who, at the material time,

(a) is under the age of majority and who has not withdrawn from their charge, or

(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;

In determining an adult child’s right, if any, to child support, sections 3 and 7 of the Federal Child Support Guidelines are the key provisions. The relevant provisions read as follows:

Amount of Child Support

Presumptive rule

3. (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

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Child the age of majority or over

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is

(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the 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.

Special or extraordinary expenses

7. (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover the following expenses, or any portion of those expenses, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense, having regard to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

. . .

(e) expenses for post-secondary education; and . . .

Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

Subsidies, tax deductions, etc.

(3) In determining the amount of an expense referred to in subsection

(1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

2) Status of Applicant; Payment to Parent or Child

An application for a child support order or for variation thereof can only be brought under the Divorce Act by either or both spouses or former spouses.39

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An adult child has no standing to bring an application for support under the Divorce Act on his or her own behalf.40On the application of either or both of the spouses, a court may order support to be paid directly to the child. Such orders are relatively unusual, even for adult children. Where a child resides with a parent who provides his or her basic needs, a court should not order support payments to be made directly to the child, unless that parent consents or there are exceptional circumstances.41On the other hand, direct payments to an adult child may be deemed appropriate where the child attends an out-of-town college or university.42Where child support is ordered to be paid to the custodial parent, the obligor is not entitled to make payments to the child instead or to purchase things for the child in partial discharge of the support obligation.43

3) Statutory Definition of "Child of the Marriage"; Eligibility of Adult Children for Child Support
a) General

A divorcing spouse may be ordered to pay support for a child under the age of provincial majority (which is either eighteen or nineteen years of age according to the province or territory in which the child ordinarily resides) or for an adult child who is unable to achieve self-sufficiency by reason of "illness, disability or other cause." Determining where a child is "ordinarily resident" for the purpose of the definition of "child of the marriage" in section 2(1) of the Divorce Act is a question of fact to be determined in light of the attendant circumstances.44Children under the provincial age of majority who are financially dependent while they continue with their schooling satisfy the definition of "children of the marriage" under section 2(1) of the Divorce Act, even though they are estranged or alienated from the non-custodial parent who is called upon to pay child support.45The definition of "child of the marriage" in section 2(1)

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of the Divorce Act is not simply one of age; it is one of dependence.46The mere fact that an adult child lacks the ability to withdraw from parental charge or to obtain the necessaries of life is not determinative of the child’s eligibility for support; the inability must be shown on the evidence to have arisen or to continue by reason of an illness, disability, or other cause recognized by the Divorce Act.47In AAC v MAB,48an adult child, who was pursuing post-secondary education that was largely financed by summer-employment income, scholarships, and student loans, was held disentitled to ongoing child support from her parent once she married. Justice MacDonald observed that the marriage, which would take place in July 2006, constituted a declaration of independence and a "withdrawal from [parental] charge" under the definition of "child of the marriage" in section 2(1) of the Divorce Act. It is noteworthy that an adult child who lives with his girlfriend or boyfriend while pursuing university studies does not automatically cease to be a "child of the marriage" where the adult child remains economically dependent on his or her parents.49In Karol v Karol,50an adult child, who withdrew from her mother’s home because of overcrowding, was not disentitled to child support while pursuing post-secondary education, merely because she was sharing household expenses with a common law partner. Justice Wilkinson undertook a review of the caselaw and identified the following factors as relevant in determining the impact of an adult child’s common law relationship upon his or her eligibility for child support to meet the costs of post-secondary education:

[19] Similarly, the fact that Sharla resides in a common-law relationship does not automatically disqualify her for support. A review of the case law shows mixed results, depending on a number of factors, including the child’s age, whether the parents approved the relationship, how long the common-law relationship has lasted, and whether the common-law partner is working full-time or part-time or attending school and without income. Other considerations are how long the child has been in school, how much the child has been able to contribute from other sources, and whether the parents would provide assistance in any event, whether ordered to or not. Another relevant consideration is whether the parents had provided

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any financial assistance at all towards the child’s post-secondary training and, if so, for how long.

Child support is transitional; it is not an income security plan for the indolent child or the perennial student. A court must be careful not to be carried away with claims on behalf of the would-be "hanger on" in perpetuity.51

b) Sick or Disabled Children

Adult children who are incapable of economic self-sufficiency because of illness or disability fall within the definition of "child of the marriage" under section 2(1) of the Divorce Act.52State subsidized financial assistance for special-needs adult children does not necessarily absolve parents of their child support obligation.53In some cases, the subsidies will be sufficient to eliminate or significantly reduce child support otherwise payable. In other cases where the government funding only subsidizes extraordinary expenses related to the child’s disability, the table amount of child support may be unaffected.54In Krangle (Guardian ad litem of) v Brisco,55McLachlin CJ, of the Supreme Court of Canada, addressed the issue of a disabled adult child’s withdrawal from the charge of his parents in the context of an action for damages for medical malpractice. She observed that the relevant statutory amendments "were not aimed at shifting the burden of caring for adult children from the state to parents, but rather with ensuring that in situations where one parent is charged with the care of an adult disabled child, the other parent is obliged to...

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