January 11th, 2022
For parents paying child support, the ongoing obligation may seem indefinite. Payor parents are often aware of how long their obligation to pay spousal support continues but, they may be unaware when their child support obligation ends.
Under the Divorce Act, RSC 1985, c 3 (2nd Supp) spouses or former spouses have an obligation to pay child support for any or all “children of the marriage”. The Divorce Act at section 2 states that a child of the marriage is “a child of two spouses of former spouses who…(a) is under the age of majority and who has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from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 obtain the necessaries of life”.
This definition appears to make the issue very clear at first glance. A child remains a child of the marriage until they reach the age of majority and, once they reach the age of majority, they are no longer a child of the marriage. The exception being that, if a child suffers from an illness, disability or is otherwise unable to care for themselves, they remain a child of the marriage until that is no longer the case.
The issue is not that simple. If a child enrolls in post-secondary education, either college or university, there may still be an obligation for the payor parent to pay support for that child.
Parents may be surprised to hear that they may still have an obligation to pay for their child’s education if they choose to enroll in a college or university program. Parents may be obligated to contribute towards their child’s education if a court determines that the child is still a “child of the marriage”. The onus for establishing that a child who has reached the age of majority is still a “child of the marriage” falls on the parent seeking support for that child. DGS v HAS, 2019 ABQB 887 at para 3.
When evaluating whether an adult child is still a “child of the marriage”, aside from circumstances where a child cannot care for themselves because of disability or illness, the courts will review the party’s circumstances. The case of Farden v. Farden, 1993 CanLII 2570 (BC SC) laid out a list of circumstances to evaluate when making that determination which include:
The courts in Alberta have recognized that this list is not exhaustive and that not every factor needs to be satisfied for a judge to conclude that a child remains a “child of the marriage”.
The total circumstances of the individual parties will be considered when determining how much support is payable. For example, if a child chooses to live on their own but does not need to, the support payable to them may be different than a child who needs to move away for school. Similarly, if a child still resides with one of the parents, that will likely impact whether section 3 child support is payable in addition to section 7 expenses.
What may surprise parents who do not have any relationship with their children is that this factor is not determinative. Although the courts are hesitant to treat a parent as a “wallet”, estranged parents are often required to still pay child support to their adult children. The courts have been clear though that although a child may remain a “child of the marriage”, the support is paid to assist the child through a transition period. L.B. v. P.A.V., 2008 ABQB 623, at para 33.
Since the role of support for adult children who are still “children of the marriage” is to help them transition, there may be circumstances where a parent will not have to pay even if a child is enrolled in school. If a child is completing an apprenticeship program which sufficiently allows the child to care for themselves, a parent may not have to contribute any support towards that child.
Even if a child remains a “child of the marriage”, the child still has an obligation “to contribute to their education to the fullest extent possible, through bursaries, scholarships, student loans or summer employment.” L.B. v. P.A.V. at para 34. Children are often required to contribute a portion of their RESP funds towards their education and there is no obligation to preserve any education fund for the child past the first degree.
The requirement to provide support for adult children is not clear cut and each parties’ unique circumstances will determine when child support obligations end. Although there are factors which are considered, there is no formula that is applied that provides a definitive answer. The best way to know whether you will still need to pay child support is to consult with a lawyer.
Are you separating or separated and have children graduating high school? Has your adult child started post-secondary school and your former spouse is demanding you pay their tuition? In Calgary, contact Anthony Young QC with Young Family Law to discuss what your future obligations may be. Call Anthony at 403-219-4216.
Anthony Young QC is a Calgary lawyer with extensive experience in litigation issues of child support. www.youngfamilylaw.ca