Definitions of 'child of the marriage'; adult children; obligation of de facto parent
| Author | Julien D. Payne; Marilyn A. Payne |
| Pages | 33-112 |
CHAPTER 3
DEFINITIONS OF “CHILD OF THE
MARRIAGE”; ADULT CHILDREN;
OBLIGATION OF DE FACTO PARENT
A. ELEVANT STATUTOY POVISIONS
e definitions of “child of the marriage” in sect ions () and () of the Divorce Act read
as follows:
Definitions
. () In this Act,
“child of the marriage” mean s a child of two spouses or former spouses who, at the materi al
time,
(a) is under the age of majority a nd who has not withdrawn from their charge, or
(b) is the age of majority or over and under their cha rge but unable, by reason of illness, dis-
ability or other caus e, to withdraw from their charge or to obtai n the necessaries of life.
. . .
Child of the marriage
() For the purposes of the definition “child of the ma rriage” in subsection (), a child of
two spouses or former spouses i ncludes:
(a) any child for whom they both st and in the place of parents; and
(b) any child of whom one is the parent and for whom the other stands in t he place of a
parent.
e age of majority in respect of a child means t he 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, Ma nitoba, Ontario, Prince Edward Isla nd, Quebec, and
Saskatchewan, and nineteen years of age in four provi nces and the three territories, namely,
RSC (d Supp), c , as amended by RSC (d Supp), c , SC , c , SC , c , SC , c .
JLL v VLL, NBQB , Walsh J, citing the de finition of “age of majority” in se ction () of the Divorce
Act.
CHILD SUPPORT GUIDELINES IN CANADA, 2020
British Columbia, New Brunswick, New foundland and Labrador, Northwest Territories,
Nova Scotia, Nunavut, and Yukon. e applicable legislation for determining whether a
child has reached the provincial age of majority i s that of the province in which the child
ordinarily resided during t he relev ant period.
An analysis of whether a child is unable to withdraw from a parent’s “charge” focuses
on whether the child remains fin ancially dependent on the parent. A child is usual ly con-
sidered to have withdrawn from parental charge when he or she has sufficient income to
meet his own financia l needs.
e phrase “at the material time” in the defin ition of “child of the marriage” under
section () of the Divorce Act does not refer to whether a person stands in t he place of a
parent within the meani ng of the definition of “child of the marriage” under section ()
of the Divorce Act. It only refers to the prerequisite of an application for child support that
the child must be under the age of majority or must be older and sti ll financial ly depend-
ent on the parents at the time the application is brought. e proper time for determining
whether a person stands in the place of a parent withi n the meaning of the definit ion of
“child of the marriage” under section () of the Divorce Act is during the marriage when the
family fu nctioned as a unit.
Section () of the Divorce Act, above, defines a “child of the mar riage” and deals with
the entitlement to support. e Federal Child Support Guidelines do not deal with entitle-
ment; they only deal with the amou nt of support.
For the purpose of applying the definition of “child of the marri age” in section () of the
Divorce Act, the age of majority in respect of a child means the age of majority as determ ined
by the laws of a province where the child ordinari ly resides, or, if the child resides outside
of Canada, eighteen years of age. A child under the age of majority is presumptively a chi ld
of the marriage. e burden falls on the parent to prove on a balance of probabilities that
the child has withdr awn from his parents’ charge. e fact that a child u nder the age of
majority has voluntarily lef t her parent’s home does not, of itself, signify that the chi ld is
no longer eligible for support as a “child of the marriage” within the mean ing of section ()
of the Divorce Act but a child under the age of majority who is financially self-sufficient
ceases to be a child of the mar riage within the meaning of section () of the Divorce Act. It
appears that any child under the provincia l age of majority satisfies the definition of “child of
the marriage” under section () of the Divorce Act, if that child is in fact financia lly depend-
ent on his or her parents. e child’s capacity to withdraw from thei r parents’ charge and
MacLean v Mio, BCSC .
See DS v WDG, BCSC at para .
Pakozdi v Pa kozdi, BCSC .
VS v DMS, BCSC ; Shelley v Russell, ONSC .
Chaulk v Avery, NLTD ; AWH v CGS, [] NSJ No (QB).
See Dring v Ghe yle, BCCA .
Chartier v Char tier, [] SCR ; DB S v SRG; LJW v TAR; Henry v Henry; Hiem stra v Hiemstra,
[] SCR ; NP v IV, BCSC ; Friday v Friday, ONSC .
Sherlow v Zubko, [] AJ No (QB).
Divorce Act, s () (defin ition of “age of majority”); see Boisve rt v Boisvert, [] AJ No (QB); RJM v
EM, BCSC ; Charbonneau v Charboneau, ONSC .
Sappier v Francis, NBQB .
JAM v SAJ, NSSC ; DBB v DMB, SKCA .
Kallen v Michaud, MBQB . Compare JLT v KLH, BCSC at paras –.
VS v DMS, BCSC ; MacLean v Mi o, BCSC at para ; MSC v TLC, NSSC .
Definitions of “Child o f the Marriage”; Adult Children; Obligation of De Facto Parent
unwilling ness to do so appears to be irrelevant to the statutor y definition. A child under
the provincial age of majority may cease to be elig ible for child support as a “child of the
marriage” within t he mean ing of section () of the Divorce Act, if the child has been l iving
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 financial support.
Children under the provincia l age of majority who a re financially dependent while they
continue with their schooling satisf y the definition of “chi ldren of the marriage” under sec-
tion () of the Divorce Act even though they a re alienated from the non-custodial pa rent
who is called upon to pay child support. A divorcing or d ivorced spous e may be ordered to
pay support in respect of an adult child who is unable to achieve sel f-sufficiency by reason
of “illness, d isability, or other cause.” e mere fact that an adult child lacks the ability to
withdraw from parental charge or to obtai n the necessaries of life is not determinative of the
child’s eligibilit y for support; the inability must be shown on the evidence to have arisen or
to continue by reason of an illness, di sability, or other cause recognized by the Divorce Act.
e pursuit of post-secondary education constitutes “other cause” under the definition
of “child of the marriage” in section () of the Divorce Act but each case is fact specific. In
determining whether the pursu it of education is a valid reason for continued dependence, a
court must consider two complex and value-laden questions. e first is whether, considering
all of the child ’s circumstances, the child’s educational pursuits a re reasonable. If so, the court
must next consider whether it is appropriate that the pursuits be financed by the pa rents.
An adult child who is enrolled as a f ull-time student in high school may be found to
be a “child of the marriage” within t he meaning of section () of the Divorce Act, notwith-
standing a “spotty” academic record and prior poor attendance record, where the chi ld is
currently maintai ning a passing average.
A divorcing or divorced spouse can be ordered to pay child support, even though he or she
is not the biological parent of the child, if he or she has acted as a pa rent towa rds the child.
A court may direct the tr ial of an issue as to whether a child falls w ithin the definition of
a “child of the marriage” where existing a ffidavit material is insufficient to resolve the issue.
Boisvert v Bo isvert, [] AJ No (QB); Longhurst v Longhurst, [] BCJ No (SC); ompson v
Ducharme, [] MJ No (CA); HS v PW, NLSC ; omas v omas, NSSC ; Wo uter s v
Wout ers , NWTSC ; Frim v Bra sseur, [] OJ No (SCJ); Gar inger v ompson, [] SJ No
(QB); compare Wigmore v Wigmore, [] PEIJ No (TD); Ladissa v Ladissa, [] OJ No (CA). Se e
also SAF v R AM, SKQB (application under e Family Maintenance Act , , SS , c F-.).
Chaulk v Avery, NLTD ; Wou ter s v Wout ers, N WTSC .
Marsh v Marsh, [] BCJ No (CA); Prittie v Do rey, BCSC .
Divorce Act, s () (definition of “child of the marriage”); Rebenchuk v Rebenchuk, MBCA ; Sher-
low 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 Suppor t for Adult Children:
e Need for a Broader Conception of ‘Ot her Cause’” () Canadian Family Law Quarterly .
Ethier v Skrudl and, SKCA ; Blanchard v Blanchard, ABCA .
Montalto v Montalto, ABQB ; Lu v Yao, BCSC ; Rebenchuk v Rebenchuk, M BCA ;
Delichte v Rogers, MBQB ; DWM v MAB, NBQB ; Hawco v Myers, [] NJ No (CA);
MacLennan v MacLennan, [] NSJ No (CA); Eas ton v Coxhead, ONSC ; Cusack v Cusa ck,
[] PEIJ No (SC); Geran v Geran, SKCA ; see Section E , below in this chapter.
Bobyn v Bobyn, BCSC at para , Donegan J, citing Nordeen v Nordee n, BCCA ; Lu v
Yao, BCSC .
PGB v JLT, [] AJ No (QB).
See Section J, below in t his chapter.
Laroque v Misling, [] NWTJ No (SC); Akert v Akert, [] SJ No (QB).
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