Adult child support is as much an oxymoron as it appears to be.
An adult is not a child and so, one would think, there ought not to be any issue of child support.
But the law works in mysterious ways, especially in the realm of family law where, for example, by the mere fact of living with another person, one spouse might have an entitlement to a pension for life from the other (called spousal support).
Adult child support is another one of those peculiar rights of family law; peculiar not because it smacks of unfairness (it doesn’t) but because there is no bright red line between a parent’s obligation and their child’s emancipation.
In Canada, there are several sources of where that threshold is.
The Divorce Act partly defers to provincial definitions by saying that as far as it is concerned, a child of the marriage but then adds words of far-reaching import:
“Child of the marriage means a child of two spouses or former spouses who, at the material time, is under the age of majority and who has not withdrawn from their charge, or is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their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.”
The cases have consistently held that other cause includes, but is not limited to the pursuit of higher education.
As the Nova Scotia Court of Appeal stated in Martell v. Height:
“How long that period continues is a question of fact for the trial judge in each case. There is no arbitrary cut-off point based either on age or scholastic attainment, although as these increase the onus of proving dependency grows heavier. As a general rule parents of a bona fide student will remain responsible until the child has reached a level of education, commensurate with the abilities he or she has demonstrated, which fit the child for entry-level employment in an appropriate field.”
Then, one need apply the federal Child Support Guidelines which have been adopted by most provinces, and which specify that unless you can convince a Court otherwise, if a child over the age of majority “has not withdrawn from their charge ... 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”, the Guidelines, §3(2), applies.
“Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is (a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.”
That the Guidelines apply to children over the age of majority is further implied in the special and extraordinary expense, at §7, of “post-secondary education”.
As Julien and Marilyn Payne wrote in 2004:
“What is appropriate or inappropriate under section 3(2) of the Federal Child Support Guidelines must be determined on a case-by-case basis; there are no hard and fast rules. A spouse who seeks to exclude the application of §3(2)(a) of the Guidelines to a child of the age of majority or over has the onus of proving that such application would be inappropriate.”
The very difficult aspect of adult child support is that it remains a matter of judicial discretion. The strongest currents have held that a child who loses his or her entitlement may retrieve it if she or he later returns within the required circumstances.
Some judges have as much as said that the fact that a person is in high school or post-secondary education full-time may create a rebuttable presumption that he or she is a child of the marriage; a dependent and entitled to support.
Here are some real-life situations and how they have been resolved by the Courts:
► Farden v Farden (British Columbia)
In this BC case, child support was terminated because the child, once of the age of majority, had terminated his relationship with the Payor. The BC magistrate set out eight considerations for the Court to assess in determining eligibility for support in regards to a child who is over the age of majority:
“1. Whether the child is in fact enrolled in a course of studies and whether it is a full time or part-time course of studies; 2. Whether or not the child has applied for or is eligible for student loans or other financial assistance; 3. The career plans of the child (i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do); 4. The ability of the child to contribute to his own support through part-time employment; 5. The age of the child; 6. The child's past academic performance, whether the child is demonstrating success in the chosen course of studies; 7. What plans the parents made for the education of their children, particularly where those plans were made during cohabitation; 8. At least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.”
► PT v RB (Alberta)
This case followed Farden then adopted these words:
“The evidence need not speak to each of these considerations in order for the adult child to remain a child of the marriage. What is key is whether the child is dependent. Where the child has indicated total independence, for example, by cohabiting with someone, it may be that the child is no longer considered a "child". On the other hand, it is not necessary that the child resides with the parent as long as the child has not removed him or herself from the parent's charge. When a child is dependent is to be determined in all of the circumstances of the particular case.
“The test to be used in determining whether an adult child of unmarried parents is entitled to support is the same as that under the Divorce Act: is the child, in law, dependent upon the parent, in whole or in part, by considering the factors outlined above. Once entitlement is established, the question of quantum arises.”
► Barbeau v Barbeau (Ontario)
In this case, a crafty lawyer argued that “his daughter is no longer entitled to support because she has completed four years of post-secondary education and has obtained a degree;” that there ought to be an automatic cut-off after the “child” has obtained a first undergraduate university degree. The Court refused to endorse such a precedent: “I would respectfully disagree with the view that there is an automatic cut-off of child support after one degree or four years of post-secondary education. To adopt this approach would be to create a judge-made rule which is not mandated by the legislation.”
► Ritchie v Ritchie (Saskatchewan)
This Saskatchewan Court of Appeal dealt with a child on the high end of the scale; a 26-year old.
“In this case, where Lesley is 26 years of age, has not resided with the custodial parent for almost three years, has lived in another city with a man in a common law relationship for that period, has well over eight years of university education including a bachelors degree with honors and a masters degree, earned almost $13,000 per annum as a teaching assistant while pursuing her master’s degree, she can hardly be said to be in the charge of either parent. She certainly cannot be said to be unable to withdraw from their charge or unable to obtain the necessaries of life.”
► JC v AMM (Ontario)
In this decision as recent as September 2007, the Court had to decide whether a 23-year old daughter “EC” who had “completed her under graduate degree in the spring of 2006 and is currently attending medical school at the University of Western Ontario having completed her first year of medical school in June 2007” was still a child of the marriage. Noting the Payor’s income of well over $200K annually, he was held to child support for EC. The Court:
“EC has now, in fact, graduated from university and is currently in post graduate studies, specifically, medicine. Although case law suggests that a child finishing his/her first undergraduate degree can lose his/her status as a child of the marriage, I find that the case law does not oblige the court to apply that principle rigidly.... EC’s decision to pursue her medical career is sufficient cause to prevent her from withdrawing from her parents' charge and, therefore, I find her to be a child of the marriage.”
► Newman v Thompson (Manitoba)
This is the poster child of adult child support cases, a court of appeal decision to boot. A 34-year old was held to be a “child of the marriage” and entitled to child support. The “child” had still not obtained his Masters Degree in Psychology.
► Leblanc v Leblanc (New Brunswick)
In this 1996 case, child support was canceled for a mentally disabled adult as follows:
“Jevette LeBlanc graduated from high school in a special education program. She is now 23 years of age and is contemplating marriage. She and her fiancé deliver catalogues, papers and flyers from door to door to earn income. Her fiancé is a mainstream high school graduate however, his parents have had him classified as disabled and he too receives a disability pension.”
► Meyer v Meyer (Manitoba)
“James Meyer, the son in respect of whom the claim for custody is asserted, is 25 years of age, retarded and an epileptic. The epilepsy is controllable but will not improve. Since leaving the farm to live in Morden with his mother he has had some employment for which he received nominal remuneration in a sheltered-workshop type of situation. However, he can be described as unemployable and unable by reason of disability to withdraw himself from the charge of a parent or to provide himself with necessaries of life. His father appears to have no interest in him. I find James Meyer to be a child within the meaning of the Divorce Act.... the husband is ordered to pay ... for maintenance of the son ... the sum of $60 per month.”
References and Research:
- Barbeau v Barbeau, 41 RFL (4th) 24 (1998)
- Duhaime, Lloyd, Legal Definition of Adult Child
- Duhaime, Lloyd, Legal Definition of Child of the Marriage
- Duhaime, Lloyd, Parental Support: The Obligation to Support a Parent in Canada, published at duhaime.org/LegalResources/FamilyLaw/LawArticle-353/Default.aspx
- Farden v Farden, 48 RFL (3d) 60 (British Columbia), online at canlii.org/en/bc/bcsc/doc/1993/1993canlii2570/1993canlii2570.html
- Federal Child Support Guidelines, published online at canlii.org/ca/regu/sor97-175/
- Federal Divorce Act published online at canlii.org/ca/sta/d-3.4/
- Leblanc v Leblanc, 1996 NBJ 30
- MacDonald, J. and Wilson, A., Child Support Guidelines Law and Practice (Toronto: Thomson Carswell, 2004)
- MacLennan v MacLennan, 2003 NSCA 9, published online at canlii.org/en/ns/nsca/doc/2003/2003nsca9/2003nsca9.html
- Martell v. Height, 130 NSR (2d) 318 (1994), available online at canlii.org/en/ns/nsca/doc/1994/1994canlii4145/1994canlii4145.html
- Meyer v Meyer, 18 RFL 105 (1975)
- Payne, Julien and Marilyn, Child Support Guidelines in Canada (Toronto: Irwin Law, 2004), p. 95.
- PT v RB, 2004 AJ 803 (Alberta Court of Appeal)
- Ritchie v Ritchie, 2003 SKCA 43, published online at canlii.org/en/sk/skca/doc/2003/2003skca43/2003skca43.html