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- Chapter 3 - Definitions of “child of the Marriage”; Adult Children; Obligation of de Facto Parent
G. Unemployment; Scope of "Other Cause"
Author | Julien D. Payne - Marilyn A. Payne |
Pages | 78-80 |
Page 78
Some courts have held that a child’s inability to obtain employment, which does not result from illness or disability but from restrictions on job availability, falls outside the meaning of "other cause" in section 2(2) of the Divorce Act. Given this interpretation, parents cannot be ordered to support a child who cannot withdraw from the charge of his or her parents or provide himself or herself with the necessities of life because of the state of the labour market. Other courts have opted for a broader interpretation of "other cause" and have ordered child support in cases where the economic climate makes it impossible for a diligent child to find employment and become self-supporting.
In Gartner v. Gartner,290Cowan C.J.T.D. of the Nova Scotia Supreme Court stated:
It seems to me that it was not the intention of the Divorce Act that parents should be required to support a child who is not ill or not disabled, and who can withdraw himself from the parents’ charge and can provide himself with the necessities of life, except that he cannot, in the present state of the labour market, find suitable work.
Page 79
This approach has been endorsed by the Appellate Division of the Supreme Court of Nova Scotia and by several trial courts in other provinces, although it has been considered appropriate to grant a period of grace to unemployed children before support is terminated.291In Baker v. Baker,292Berger J., of the Alberta Court of Queen’s Bench, rejected the reasoning in Gartner v. Gartner because of the unfair burden such an approach placed on the custodial parent, stating:
The reasoning in Gartner fails, in my opinion, to address the reality of unemployment and its impact on the spouse who has no choice but to support her unemployed child. It is little comfort to her that but for the sorry state of the economy the child could be expected to be self-supporting. The fact is that the child cannot provide for herself and that one parent is supporting the child.
. . . If the other parent has the resources to contribute, then he has a legal obligation to do so arising from s. 15 of the Act.
There is no justifiable reason to differentiate between a child who cannot provide for himself because he is in school, and a child who cannot provide for himself because the economic situation makes it impossible to obtain a job.
A similar conclusion was reached in Bruehler v. Bruehler293wherein Hutcheon J.A., of the British Columbia Court of...
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- Chapter 3 - Definitions of “child of the marriage”; adult children; obligation of de facto parent
- A. Relevant Statutory Provisions
- B. Effect of Differing Criteria under Federal and Provincial Legislation
- C. Applicable Criteria under Divorce Act and Federal Child Support Guidelines Respecting Children under and over the Provincial Age of Majority
- D. Child’s Illness or Disability; Respective Obligations of Parents and State
- E. Post-Secondary Education or Training
- F. Children over Age of Majority: Section 3(2) of Guidelines
- G. Unemployment; Scope of "Other Cause"
- H. Withdrawal from Parental Charge
- I. Reversion to Former Status of Child of the Marriage
- J. Persons Standing in Place of Parents
- K. Conduct
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