Definitions of 'Child of the Marriage'; Adult Children; Obligation of De Facto Parent
| Author | Julien D. Payne - Marilyn A. Payne |
| Pages | 40-120 |
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 spouses who, at the mater ial
time,
(a) is under the age of majority and w ho has not withdrawn from their charge, or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 sta nds in the place of a
parent.
An analysis of whether a ch ild is unable to withdraw from a parent’s “charge” focuses on
whether the child remains fi nancially dependent on the parent. A child is usual ly consid-
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 .
Definition s of “Child of the Marriage”; Adult C hildren; Obligation of De Facto Pa rent
ered to have withdrawn from parental charge when he or she has sufficient income to meet
his or her own financial need s.
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 determining whet her
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 un it.
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 marri age” 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. e fact that a child under the age of majority has
voluntarily left her parent’s home does not, of itself, signif y that the child is no longer eli-
gible for support as a child of the marriage wit hin the meaning of section () of the Divorce
Act. It appears that any child under the provincial age of majority sati sfies the definition
of “child of the marriage” under section () of the Divorce Act, if that child is in fact finan-
cially dependent on his or her parents. e child’s capacity to wit hdraw from their parents’
charge and unwilli ngness to do so appears to be irrelevant to the statutor y definition. A
child under the provincial age of majority may cea se to be eligible for child support as a
child of the marriage wit hin the meaning of section () of the Divorce Act, if the child has
been living with her t wenty-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 finan-
cial suppor t. Children under the provincial age of majority who are fina ncially dependent
while they continue with their s chooling satisfy the definition of “children of the marriage”
under section () of the Divorce Act even though they are alienated from the non-custo dial
Chaulk v. Avery, NLTD ; A.W.H. v. C.G.S., [] N.S.J. No. (Q.B.).
Chartier v. Chartier, [] S.C.R. ; D.B.S . v. S.R.G.; L.J.W. v. T.A.R.; He nry v. Henry; Hiemstra v.
Hiemstra, [] S.C.R ..
Sherlow v. Zubko, ABQB .
Divorce Act, s. () (definition of “age of majorit y”); see Boisvert v. Boisver t, [] 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 .
Kallen v. Michaud, MBQB . Compare J.L .T. v. K.L.H., BCSC at pa ras. –.
Boisvert v. Boisvert, [] A.J. No. (Q.B.); Longhurst v. Longhurst, [] B.C.J. No. (S.C.);
Vishloff v. Vishloff, [] B.C.J. No. (S.C.); Foster v. Foster, [] B.C.J. No. (S.C.); ompson v.
Ducharme, [] M.J. No. (C.A.); Marshall v. Marshall, [] N.S.J. No. (S.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.). See also T.L.M. v. M.J.M., [] B.C.J. No. (S.C.) (application under Family Relations
Act); Ames v. Ames, [] B.C.J. No. (S.C.); Brown v. Brown, NSSC . Compa re Patriquen v.
Stephen, NSSC .
Chaulk v. Avery, NLTD .
CH ILD SUPPORT GUIDELIN ES IN CANADA,
parent who is called upon to pay child support. A divorcing or d ivorced spouse may be
ordered to pay support in respect of an adult child who is unable to achieve self-sufficiency
by reason of “illness, d isability, or other cause.” e mere fact that an adult ch ild lacks the
ability to withdr aw from parental charge or to obtain the necess aries of life is not determi-
native 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, d isability, 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 sect ion () of the Divorce Act, but each case is
fact specific. An adult child who is enrolled as a fu ll-time student in high school may be
found to be a child of the marriage within the meaning of section () of the Divorce Act,
notwithstand ing a “spotty” academic record and prior poor attendance record, where the
child is currently ma intaining 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 towards the
child.
A court may direct the trial of an issue as to whether a child fa lls within the definition
of a “child of the marriage” where existing affidav it material is insufficient to resolve the
issue.
Pursuant to section of the Alber ta 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 t he 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
(Saskatchewan) does not survive the adoption of the child by a third pa rty. e same is true
where the biologica l parent’s support obligation a rose pursuant to the Divorce Act. e fact
that provinci al adoption legisl ation terminates rights under the Divorce Act does not raise
any concerns u nder the doctrine of pa ramountcy.
Marsh v. Marsh, [] B.C.J. No. (C.A.); Prittie v. Dore y, BCSC .
Divorce Act , s. () (definition of “child of the m arriage”); Rebenchuk v. Rebenchuk, MBCA ; Sher-
low v. Zubko, ABQB .
Ethier v. Skrudlan d, SKCA .
Montalto v. Montalto, ABQB ; C. A.M .T. v. A .P.G.T. , BCSC ; Atkinson v. Atkinson,
BCSC ; Rebenchuk v. Rebenchuk, MBCA ; O’Donnell v. O’Donnell, NBQB ; O’Br ien v.
O’Brien, NBQB ; Hawko v. Myers, [] N.J. No. (C.A.); MacLennan v. MacLenn an, []
N.S.J. No. (C.A.); Shelley v. Russell, ONSC ; Cu sack v. Cusack, [] P.E.I.J. No. (S.C.); Rad-
ford v. Radford, SKQB ; Geran v. Geran, SKCA ; see Se ction E, below in this ch apter.
P.G.B. v. J.L.T., [] A.J. No. (Q.B.).
See Sec tion 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 support di smissed; alternative ba sis for
dismissa l found in the child’s consent t o the adoption coupled with the child ’s estrangement from his
father over the precedi ng ten years).
Marud v. Marud, [] S.J. No. (Q.B.).
Reiss v. Reiss, [] S.J. No. (Q.B.); see also Brennan v. Brenna n, ABQB .
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