Canada’s Divorce Act sets out the entitlement to child support and enables courts to make support orders. However, child support obligations do not necessarily end when a child reaches the age of majority. Support may continue to be payable while an adult child is pursuing post-secondary education or cannot withdraw from the charge of his or her parents. Recent cases have also recognized economic and social factors that can hinder a young adult’s independence and contribute to “delayed adulthood.” Consequently, some courts have found that the trend towards later independence may require payors to support adult children through a reasonable transition period.
Children of separated parents are entitled to child support if they meet the definition of a “child of the marriage.” Section 2(1)(b) of the Divorce Act defines a child of the marriage as a child of two spouses or former spouses who at the material time “is the age of majority or over and under their charge but unable, because of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.” Courts have found that adults who do not have a disability or who are not enrolled in post-secondary education may still be considered a “child of the marriage” and, therefore, entitled to child support due to some “other cause.” Whether an adult child continues to be a “child of the marriage” will be determined on a case-by-case basis, with the onus on the party claiming support for the child.
The Alberta case of KMR v. IWR considered the issue of child support for children who were over the age of majority. The judge noted that section 2(1)(b) of the Divorce Act does not answer what “other cause” could justify an order that a child over the age of majority is entitled to child support. Previously, courts decided that the term can be interpreted broadly and is not limited to illness or disability. Justice Jerke acknowledged that courts might ” recognize a broader social reality as concerns the concept of “child of the marriage.” In D.B.S. v. S.R.G., it was held that Parliament did not envision adult children over the age of majority and dependent would benefit from child support orders. Yet, courts have previously found that this policy did not align with the social reality that children’s economic self-sufficiency is delayed.
In MacEachern v. Bell, it was recognized that a child may require a period of support after pursuing their education if they made reasonable efforts to obtain employment but were unsuccessful.
In Brun v. Fernandez, the court considered the circumstances in which child support could be ordered for children over the age of majority who are not disabled or enrolled in post-secondary education. The parties ultimately disagreed on the end date for child support for their adult children. The applicant selected dates on which he argued the children were no longer entitled to support because one was over the age of 18 and had completed a university degree. The second child had turned 18 years old and was not attending post-secondary education.
The Court first noted that although “other cause” is not defined in the legislation, courts already accepted that unemployment stemming from economic conditions and a transition period constituted an “other cause.” However, when adult children can work but are unemployed, the duration of support will often be limited. Similarly, children who do not continue their education may need a transition period after completing schooling before becoming economically independent. In Gamache v. Gamache, the court recognized that parents do not have an indefinite obligation to provide support in these circumstances but that they “do have an obligation to support adult children who are unable to provide for themselves through a reasonable transition period.” Further, Weber v. Weber illustrated that while the court accepted that a reasonable transition period might be appropriate in some circumstances, the appropriate length depended on assessing the adult child’s “overall condition, means, needs and circumstances.”
For Justice Jain in Brun, extending child support obligations beyond the age of majority was consistent with the legislation and could fall under “other causes.” The Court also acknowledged that economic and social realities could amount to “delayed adulthood.” In the present day, independence for young adults is achieved at a later date than in earlier decades. A greater amount of education and training is needed to secure employment. Therefore, young adults spend a greater amount of time in post-secondary education. Additionally, with tuition costs increasing, more adults choose to live at home to pay off debts. Justice Jain found that there was a growing precedent for child support in these circumstances, which required determining:
- Whether the adult child is able to obtain an income to meet their reasonable needs, and
- Whether the cause of the child’s inability to withdraw from their parent’s charge permitted under the Divorce Act?
In this case, the parties’ two sons continued living with the respondent and were financially dependent on her past the date the applicant sought to terminate support. The respondent alleged that one son was dependent on her for a period of time after graduation until he obtained full-time employment. According to her, their other son was still dependent on her, resided with her, and only worked part-time. The judge concluded that both were adult children who were “unable to withdraw from parental charge because of “other cause.” Their income was not sufficient to support their needs, and the “economic conditions of unemployment or unstable employment, increased cost of living and the COVID pandemic have all overlapped with their circumstances.” The children needed their parent’s support and consequently, both fell within the definition of a “child of the marriage” for an additional period of time consistent with the respondent’s request.
While parents do not have an indefinite obligation to support their young adult children who are unemployed, they do, however, have an obligation to provide ongoing support in certain circumstances. Courts have acknowledged various pressures may make it difficult for children to be economically self-sufficient when they turn 18 years old and, as such, have ordered transitional child support beyond the age of majority in limited cases.
The experienced family law lawyers at Johnson Miller Family Lawyers in Windsor regularly work with clients to navigate issues arising from divorce and separation, including child support and spousal support matters. Our team will assess your circumstances and explain how the law applies. We will advise you on your options to help you move forward and will ensure your rights are protected throughout the dispute resolution process and litigation if necessary. Please contact us online or by phone at 519-973-1500 to speak with a member of our team regarding your child support questions.