A. Relevant Statutory Provisions

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 40-42

Page 40

The definitions of "child of the marriage" in sections 2(1) and 2(2) of the Divorce Act¹read as follows:

Definitions

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(a) is under the age of majority and who has not withdrawn from their charge, or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

An analysis of whether a child is unable to withdraw from a parent’s "charge" focuses on whether the child remains financially dependent on the parent.²A child is usually consid-

Page 41

ered to have withdrawn from parental charge when he or she has sufficient income to meet his own financial needs.³

The phrase "at the material time" in the definition of "child of the marriage" under section 2(1) 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 2(2) 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 still financially dependent on the parents at the time the application is brought. The proper time for determining whether a person stands in the place of a parent within the meaning of the definition of "child of the marriage" under section 2(2) of the Divorce Act is during the marriage when the family functioned as a unit.⁴Section 2(1) of the Divorce Act, above, defines a "child of the marriage" and deals with the entitlement to support. The Federal Child Support Guidelines do not deal with entitlement; they only deal with the amount of support.⁵For the purpose of applying the definition 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 ordinarily resides, or, if the child resides outside of Canada, eighteen years of age.⁶ The 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 eligible for support as a "child of the marriage" within the meaning of section 2(1) of the Divorce Act.⁷It appears that any child under the provincial age of majority satisfies the definition of "child of the marriage" under section 2(1) of the Divorce Act, if that child is in fact financially dependent on his or her parents. The child’s capacity to withdraw from their parents’ charge and unwillingness to do so appears to be irrelevant to the statutory definition.⁸

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 financial support.⁹Children under the provincial age of majority who are financially...