Definitions of 'child of the marriage'; adult children; obligation of de facto parent
| Author | Julien D. Payne, Marilyn A. Payne |
| Pages | 37-117 |
DEFINITIONS OF “CHILD OF THE
MARRIAGE”; ADULT CHILDREN;
OBLIGATION OF DE FACTO PA REN T
A. RELEVANT STATUTORY PROVISIONS
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 spouse s who, at the material
time,
(a) is under the age of majority a nd who has not withdrawn from their charge, or
(b) is the age of major ity or over and under their charge but unable, by rea son of illness,
disabilit y or other cause, to withdraw from their cha rge or to obtain 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) a ny child of whom one is the parent and for whom the other st ands in the place of a
parent.
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 usually con-
sidered to have withdrawn from parental charge when he or she has sufficient income to
meet his own financia l needs.
R.S.C. (d Supp.), c. , as amended by R. S.C. (d Supp.), c. , S.C. , c. , S.C. , c. , S.C.
, c. .
Shelley v. Russell, ONSC .
Chaulk v. Avery, NLTD ; A.W.H. v. C.G.S., [] N.S.J. No. (Q.B.).
CH ILD SUPPORT GUIDELIN ES IN CANADA,
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 the place of a
parent within the meaning 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 stil l financially dependent on
the parents at the time the application is brought. e proper time for determini ng whether
a person stands in the place of a parent withi n the meaning of the definition of “child of
the marriage” under section () of the Divorce Act is during the marriage when the family
functioned as a unit .
Section () of the Divorce Act, above, defines a “child of the marriage” and deals wit h
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 marriage” in section () of
the Divorce Act, the age of majority in respect of a child means the age of majority a s deter-
mined by the laws of a province where the child ordina rily resides, or, if the child resides
outside of Canada, eighteen years of age. A child under the age of majority is presumptively
a child of the marriage. e burden falls on the parent to prove on a balance of probabilities
that the child has withd rawn from his parents’ charge. e fact that a child under the age of
majority has voluntarily lef t her parent’s home does not, of itself, signify that t he child is no
longer eligible for support as a “child of the marriage” within the mea ning of section () of
the Divorce Act but a child under the age of majority who is financially self-sufficient cease s
to be a child of the marriage within the meaning of section () of the Divorce Act. It ap-
pears that any child under the provincia l age of majority satisfies the definit ion 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
unwilling ness to do so appears to be irrelevant to the statutory defin ition. 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 meaning of section () of the Divorce Act, if the child has been livi ng
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 are financia lly dependent while they
continue with their schooling satisf y the definition of “children of the marriage” under sec-
Char tier v. Chartier, [] S.C.R. ; D.B.S. v. S. R.G.; L.J.W. v. T.A.R.; Henr y v. Henry; Hiemstra v.
Hiemstra, [] S.C.R . ; N.P. v. I.V., BCSC ; Friday v. Friday, ONSC .
Sherlow v. Zubko, [] A.J. No. (Q.B.).
Divorce Act, s. () (definition of “age of majority”); see B oisvert v. Boisvert, [] A.J. No. (Q.B.);
O’Connell v. McIndoe, [] B.C.J. No. (S.C.); Longhurst v. Longhurst, [] B.C.J. No. (S.C.);
Charbonneau v. Charboneau, ONSC .
Sappier v. Francis, NBQB .
J. A.M. v. S.A.J., NSSC .
Kallen v. Michaud, MBQB . Compare J.L.T. v. K.L.H., BC SC at paras. –.
M.S .C. v. T.L .C., NSSC .
Boisvert v. Boisvert, [] A.J. No. (Q.B.); Longhurst v. Longhurst, [] B.C.J. No. (S.C.);
ompson v. Ducharme, [] M.J. No. (C.A.); omas v. omas, NSS C ; Woute rs v. Wo ut-
ers, NWTSC ; Frim v. Brasseur, [] O.J. No. (S.C.J.); Garinger v. ompson, [] S.J. No.
(Q.B.); Compare Wigmore v. Wigmore, [] P.E.I.J. No. (T.D.); Ladissa v. Ladissa, [] O.J. No.
(C.A.).
Chaulk v. Avery, NLTD ; Wout ers v. Woute rs, NW TSC .
Definition s of “Child of the Marriage”; Adult C hildren; Obligation of De Facto Pa rent
tion () of the Divorce Act even though they are alienated from the non-custodia l parent
who is called upon to pay child support. A divorcing or divorced spouse m ay 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 abilit y 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 aris en 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, consid-
ering all of the chi ld’s circumstances, the child ’s educational pursuits are reasonable. If so,
the court must next consider whether it is appropriate that the pursuits be fin anced by the
parents.
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 parent towards the
child.
A court may direct the tr ial of an issue as to whether a child falls wit hin the definition
of a “child of the marriage” where existing affidav it material is insufficient to resolve the
issue.
Pursuant to section of the Albert a Family Law Act, a child support order is termi-
nated by the adoption of the child but this does not affect ar rears of child support that
accrued prior to such termination. A step-parental adoption terminates the ties between
the child and his biological f ather and precludes an order for child support being made
against t he biological fat her. e child support obligations of an adoptive parent in Sas-
katchewan correspond to the obligations of a natural parent. e chi ld support obliga-
tion of a non-custodial biological parent ari sing pursuant to e Family Maintenance Act
Marsh v. Marsh, [] B.C.J. No. (C.A.); Prittie v. Dore y, BCSC .
Divorce Act, s. () (definition of “child of the mar riage”); Rebenchuk v. Rebenchuk, MBCA ; Sher-
low v. Zubko, [] A.J. No. (Q.B.).
Ethier v. Skrudlan d, SKCA .
Montalto v. Montalto, ABQB ; Atkinson v. Atkinson, BCSC ; Rebenchuk v. Rebenchuk,
MBCA ; D.W.M. v. M.A.B., NBQB ; H awco v. Myers, [] N.J. No. (C.A.); MacLen-
nan v. MacLennan, [] N.S.J. No. (C.A.); Szit as v. Szitas, ONSC ; Cusack v. Cusack, []
P.E.I.J. No. (S.C.); Geran v. Geran, SKCA ; see Sec tion E, below in this chapt er.
Bobyn v. Bobyn, BCS C at para. , Donegan J., citing Norde en v. Nordeen, BCCA .
P.G.B. v. J.L.T., [] A.J. No. (Q.B.).
See Sect ion I, below in this chapter.
Laroque v. Misling, [] N.W.T.J. No. (S.C.); Akert v. Akert, [] S.J. No. (Q.B.).
Re S.N.L ., [] A.J. No. (Q.B.).
Zien v. Woida, [] B.C.J. No. (S.C.) (application for child suppor t dismissed; altern ative basis for
dismissa l found in the child’s consent to t he adoption coupled with the child ’s estrangement from his
father over the precedi ng ten years).
Marud v. Marud, [] S.J. No. (Q.B.).
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