H. Withdrawal from Parental Charge

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 80-84

Page 80

See note FN>299

An adult child must be unable to withdraw from his or her parents’ charge or to obtain the necessaries of life by reason of illness, disability, or other cause in order to be eligible for child support as a "child of the marriage" within the meaning of section 2(1) of the Divorce Act. A healthy and able adult child who has no definite plans to obtain any further education or training and who has made no real effort to find employment is not a "child of the marriage" entitled to support.³⁰⁰ Once a child who is the subject of an existing support order reaches the age of majority, there is no continuing presumption of child support entitlement in the absence of evidence that such support remains statutorily required under the Divorce Act. Nevertheless, an existing support order does not automatically expire upon the child attaining the age of majority; the question is not one of age, but of dependency. A parent who seeks to vary a support order by reason that the child is no longer a "child of the marriage" has the onus of bringing an application to that effect and of establishing that the child has attained the age of majority, but this usually requires nothing more than proof that the child has reached the provincial age of majority the child’s plans for the future have not been made known to the supporting parent.³⁰¹An adult child who is financially dependent on his or her parents while completing school is a "child of the marriage" within the meaning of section 2(1) of the Divorce Act and, therefore, is eligible for support under the Federal Child Support Guidelines.³⁰²An adult child, who has experienced learning difficulties, does not lose her status as a "child of the marriage" under section 2(1) of the Divorce Act in consequence of her temporary withdrawal from school while awaiting an opportunity to complete her high school diploma.³⁰³An adult child, who does not attend school on a full-time basis because of post traumatic stress disorder associated with family violence, is entitled to ongoing support as a "child of the marriage" within the meaning of section 2(1) of the Divorce Act.³⁰⁴The voluntary withdrawal of a child from either parent’s home does not necessarily preclude a finding that the child is a "child of the marriage" within the meaning of section 2(1) of the Divorce Act. Children live away from their parents’ homes for a variety of reasons without withdrawing from the charge of their parents in the sense that the parents have a continuing obligation for their support.³⁰⁵Conversely, a child may reside with one or other

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of the parents and still have withdrawn from their charge.³⁰⁶An adult child who is financially independent is not a "child of the marriage" within the meaning of section 2(1) of the Divorce Act, even though he or she still lives with one of the parents.³⁰⁷Each case must be examined in light of its own circumstances.

Whether a child remains in the charge of one or other parent and is thus entitled to support is a question of fact and the court must draw the line where it thinks fit and proper having regard to the condition, means, needs and other circumstances of the child and its parents. A child under the age of majority is entitled to continued financial assistance from the parents unless the evidence demonstrates that the child has withdrawn from parental charge. The fact that the child is not living with either parent is not determinative; the test is whether the child is independent in the sense that no financial assistance or parental guidance is necessary.³⁰⁸A pregnant child living with the prospective father of her child may be entitled to child support from her parents in order to finish her high school education.³⁰⁹If a child marries³¹⁰or chooses to enjoy an independent lifestyle, such a child may be found to have withdrawn from the charge of both parents so as to be disentitled to the status of a "child of the marriage" for the purpose of child support.³¹¹A parent is not obligated to pay support for a child who has withdrawn from parental control and voluntarily adopted an independent lifestyle.³¹²An adult child, who is a single mother and in full-time attendance at school, may be eligible for child support as a "child of the marriage" within the meaning of section 2(1) of the Divorce Act.³¹³An adult child who is a single parent may cease to fall within the definition of a "child of the marriage" if she is not pursuing further education and, in such a case, the father of the adult child is not legally obliged to support her and the grandchild.³¹⁴A pregnant child who is living with her mother has been deemed to be a "child of the marriage" within the meaning of section 2(1) of the Divorce Act, pending anticipated pursuit of university studies at the commencement of the academic year.³¹⁵A child support order requires that the child for whom support is sought be in the "charge" of the applicant parent. This presupposes that the applicant parent has assumed a degree of

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responsibility for the care and support of the child.³¹⁶A child who attends school or university and is unable to provide for herself or himself may be entitled to support even though the child resides with a boyfriend,³¹⁷girlfriend,³¹⁸with an older sibling,³¹⁹or grandparent³²⁰rather than with either parent. An adult child’s "common-law relationship" while attending university does not warrant the termination of child support where the adult child remains economically dependent on her parents. An adult child does not cease to be a "child of the marriage" within the...