I. Reversion to Former Status of Child of the Marriage

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 84-85

Page 84

If a child has ceased to be a child of the marriage by reason of having achieved self-sufficiency, the question may arise whether that child can regain his or her lost status. Some courts have been reluctant to order support when a child has withdrawn from school or college but thereafter seeks to resume his or her education, although there is nothing in the Divorce Act to suggest that a child may not move from being a child of the marriage to being outside that category and thereafter within it again.³³⁴An adult child who has ceased to be a "child of the marriage" under the Divorce Act and the Federal Child Support Guidelines may regain that lost status by reason of the pursuit of further education,³³⁵but the door to reinstatement of dependent status for support purposes is not open forever.³³⁶In determining whether the status has been regained, each fact situation must be analyzed carefully and the timelines between the time when the child lost that status and the time when an application is made respecting the resumption of the status must be considered fully.³³⁷A hiatus of one year in a child’s pursuit of education constitutes no bar to an order for future child support where the child thereafter diligently seeks to remedy past academic failures.³³⁸

Each case rests on its own facts and each child’s circumstances may need to be individually addressed.³³⁹Past failure in the pursuit of higher education does not necessarily preclude ongoing child support on the child’s resumption of post-secondary education.³⁴⁰Whether the status of being "a child of the marriage" has been regained is a question of fact that may be determined by whether the educational program and the resources of the parent render such a course realistic. When the child in respect of whom support is brought has already been provided with the means to be independent and the parent against whom support is sought has assumed new obligations to a second family, a court may conclude that the

Page 85

parent should not be called upon to support an adult child’s pursuit of postgraduate professional training.³⁴¹

[334] Stocchero v. Stocchero (1997), 29 R.F.L. (4th) 223 (Alta. C.A.); Longhurst v. Longhurst, 2005 BCSC 1189; Horvath v. Horvath, [2000] M.J. No. 428 (C.A.); Pritchard v. Pritchard (1991), 38 R.F.L. (3d) 45 (N.S. Fam. Ct.); F.(R.L.) v. F.(S.) (1996), 26 R.F.L. (4th) 393 (Ont. Ct. Gen. Div.); Olsen v. Olsen, [1997] S.J. No. 476 (Q.B.); compare O’Dare v. Paley...