Definitions of "Child of the Marriage"; Adult Children; Obligation of De Facto Parent

• Jurisdiction: Canada
• Pages: 33-116
• Author: Julien D. Payne,Marilyn A. Payne

33

 

Definitions of “Child of the Marriage”; Adult

Children; Obligation of De Facto Parent

A. RELEVANT STATUTORY PROVISIONS

e denitions of “child of the marriage” in sections 2(1) and 2(2) of the Divorce Act1 read as

follows:

Denitions

2 (1) In this Act, . . .

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(a) is under the age of majority and who has not withdrawn from their charge, or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

ability or other cause, to withdraw from their charge or to obtain the necessaries of life.

. . .

Child of the marriage

(2) For the purposes of the denition child of the marriage in subsection (1), a child of

two spouses or former spouses includes:

(a) any child for whom they both stand in the place of parents; and

(b) any child of whom one is the parent and for whom the other stands in the place of a parent.

e age of majority in respect of a child means the age of majority as determined by the

laws of a province where the child resides. e age of majority is eighteen years of age in six

provinces, namely, Alberta, Manitoba, Ontario, Prince Edward Island, Quebec, and Saskatch-

ewan, and nineteen years of age in four provinces and the three territories, namely, British Col-

umbia,2 New Brunswick, Ne wfoundland and Labrador, Northwest Territories, Nova Scotia,3

 RSC  (d Supp), c , as amended by RSC  (d Supp), c , SC , c , SC , c , SC , c .

See also Maxine M Kerr, “Child Support for Adult Children” ()  CFLQ –.

 MacLean v Mio,  BCSC .

 Homann v Briscoe,  NSSC .

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34   , 

Nunavut, and Yukon.4 e applicable legislation for determining whether a child has reached

the provincial age of majority is that of the province in which the child habitually resided

during the relevant period.5

An analysis of whether a child is unable to withdraw from a parent’s “charge” focuses on

whether the child remains nancially dependent on the parent.6 A child is usually considered

to have withdrawn from parental charge when he or she has sucient income to meet his or

her own nancial needs.7 A child who attains the provincial age of majority while attending

school may cease to be eligible for child support by virtue of concurrent employment that

provides the child with sucient income to enable her to withdraw from her parents’ care

and to be independent had she chosen to do so.8 e proper time for determining whether

a person stands in the place of a parent within the meaning of the denition of “child of

the marriage” under section 2(2) of the Divorce Act is during the marriage when the family

functioned as a unit.9

Section 2(1) of the Divorce Act, above, denes a “child of the marriage” and deals with the

entitlement to support. e Federal Child Support Guidelines do not deal with entitlement;

they only deal with the amount of support.10

For the purpose of applying the denition of “child of the marriage” in section 2(1) of the

Divorce Act, the age of majority in respect of a child means the age of majority as determined

by the laws of a province where the child habitually resides, or, if the child resides outside of

Canada, eighteen years of age.11 A child under the age of majority is presumptively a child of

the marriage.12 e burden falls on the parent to prove on a balance of probabilities that the

child has withdrawn from his parents’ charge.13 e fact that a child under the age of majority

has voluntarily left her parent’s home does not, of itself, signify that the child is no longer eli-

gible for support as a “child of the marriage” within the meaning of section 2(1) of the Divorce

Act14 but a child under the age of majority who is nancially self-sucient ceases to be a child

of the marriage within the meaning of section 2(1) of the Divorce Act.15 It appears that any

child under the provincial age of majority satises the denition of “child of the marriage”

under section 2(1) of the Divorce Act, if that child is in fact nancially dependent on his or

her parents. e child’s capacity to withdraw from their parents’ charge and unwillingness

 See DS v WDG,  BCSC  at para .

 Pakozdi v Pakozdi,  BCSC .

 VS v DMS,  BCSC ; Shelley v Russell,  ONSC .

 Chaulk v Avery,  NLTD ; AWH v CGS, [] NSJ No  (QB).

 Smith v Smith,  ABQB .

 Chartier v Chartier, []  SCR ; DBS v SRG; LJW v TAR; Henry v Henry ; Hiemstra v Hiemstra,

[]  SCR ; NP v IV,  BCSC ; Friday v Friday,  ONSC .

 Sherlow v Zubko, [] AJ No  (QB).

 Divorce Act, s () (denition of “age of majority”); see Boisvert v Boisvert, [] AJ No  (QB); RJM

v EM,  BCSC ; Charbonneau v Charboneau,  ONSC .

 Sappier v Francis,  NBQB .

 Sharma v Sharma,  MBQB ; JAM v SAJ,  NSSC ; DBB v DMB,  SKCA .

 Kallen v Michaud,  MBQB . Compare JLT v KLH,  BCSC  at paras –. See also

Matechuk v Kopp (Yaworenko),  SKQB .

 Stockall v Stockall,  ABQB ; MacLean v Mio,  BCSC  at para ; Homann v Briscoe,

 NSSC .

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Definitions of “Child of the Marr iage”; Adult Children; Obligation of De Facto Parent 35

to do so appears to be irrelevant to the statutory denition.16 A child under the provincial

age of majority may cease to be eligible for child support as a “child of the marriage” within

the meaning of section 2(1) of the Divorce Act, if the child has been living with her twenty-

year-old boyfriend for seventeen months, has no intention of returning to the home of either

parent, and is no longer dependent on her parents for nancial support.17

Children under the provincial age of majority who are nancially dependent while they

continue with their schooling satisfy the denition of “children of the marriage” under sec-

tion 2(1) of the Divorce Act even though they are alienated from the parent who is called upon

to pay child support.18 Special circumstances are required for a child under the provincial age

of majority to be considered to have withdrawn from the charge of their parents. ese cir-

cumstances could include a period of travel and work to another country or a lengthy period

of incarceration, but not every child under majority who is living away from their parents will

be considered to have withdrawn from their parent’s charge, especially if a parent continues

to provide nancial and emotional support.19 A divorcing or divorced spouse may be ordered

to pay support in respect of an adult child who is unable to achieve self-suciency by reason

of “illness, disability, or other cause.”20 e 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.21

e pursuit of post-secondary education may constitute “other cause” under the den-

ition of “child of the marriage” in section 2(1) of the Divorce Act but each case is fact specic.22

In determining whether the pursuit of education is a valid reason for continued dependence, a

court must consider two complex and value-laden questions. e rst is whether, considering

all of the child’s circumstances, the child’s educational pursuits are reasonable. If so, the court

must next consider whether it is appropriate that the pursuits be nanced by the parents.23

 Boisvert v Boisvert, [] AJ No  (QB); Longhurst v Longhurst, [] BCJ No  (SC); omp-

son v Ducharme, [] MJ No  (CA); HS v PW,  NLSC ; omas v omas,  NSSC ;

Wouters v Wouters,  NWTSC ; Frim v Brasseur, [] OJ No  (SCJ); Garinger v ompson,

[] SJ No  (QB); compare Wigmore v Wigmore, [] PEIJ No  (TD); Ladissa v Ladissa, []

OJ No  (CA). Compare Bachynski v Cale,  SKQB  (application under e Family Mainten-

ance Act, 1997, SS , c. F-.).

 Chaulk v Avery,  NLTD ; Wouters v Wouters,  NWTSC .

 VMH v JH,  ABQB ; Marsh v Marsh , [] BCJ No  (CA); Prittie v Dorey,  BCSC .

 JCW v JKRW,  BCSC  at para , Matthews J.

 Divorce Act, s () (denition of “child of the marriage”); Rebenchuk v Rebenchuk,  MBCA ;

Sherlow v Zubko, [] AJ No  (QB). See also Dumont v Dumont,  BCSC  (application

under the BC Family Law Act, SBC , c ). And see Rose Branton, “Exploring Child Support for

Adult Children: e Need for a Broader Conception of ‘Other Cause’” ()  Canadian Family Law

Quarterly .

 Ethier v Skrudland,  SKCA ; Blanchard v Blanchard,  ABCA ; LCR v IJER,  SKQB .

See also Marthinsen v Marthins en,  BCSC ; LLM v DRM,  BSSC .

 Montalto v Montalto,  ABQB ; JCW v JKRW,  BCSC ; Rebenchuk v Rebenchuk, 

MBCA ; MD v PD,  NBKB ; Hawco v Myers, [] NJ No  (CA); MacLennan v MacLen-

nan, [] NSJ No  (CA); Edwards v Edwards,  ONSC ; Cusack v Cusack, [] PEIJ No 

(SC); MacLennan v MacLennan,  SKCA ; see Section E, below in this chapter.

 Bobyn v Bobyn,  BCSC  at para , Donegan J, citing Nordeen v Nordeen,  BCCA ; Lu v

Yao,   BCSC .

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