Written on behalf of Shariff & Associates
A parent’s obligation to financially support their children continues after a divorce or separation and does not automatically end when the child reaches the age of majority. Neither Ontario’s Family Law Act nor the federal Divorce Act specify a cut-off age at which child support stops. Instead, both pieces of legislation assess whether an adult child is financially dependent and set out the circumstances where they may be entitled to ongoing support.
Child Support Obligations in Ontario
Both the Ontario Family Law Act and the federal Divorce Act provide equivalent obligations on parents to support their children who cannot withdraw from their charge. Section 15.1 of the Divorce Act allows a court to make an order requiring a spouse to pay for the support of any children of the marriage.
A child of the marriage is defined to include:
- a child who is under the age of majority and who has not withdrawn from the spouses’ or former spouses’ charge; or
- a child who is of the age of majority or over but is unable by reason of illness, disability, or other cause, to withdraw from the spouses’ or former spouses’ charge or to obtain the necessaries of life.
A similar principle is set out in section 31 of the Family Law Act.
Age of the Child Does Not Determine When Child Support Ends
Child support for children who have reached the age of majority is constrained under the legislation and is highly fact-dependent. As a result, a parent’s obligation to support their children does not necessarily end when they attain the age of majority.
In Smith v. Smith, the Saskatchewan Court of Appeal explained that the issue of whether a child remains entitled to support is a matter of dependency more than age and that a “support order does not self-destruct when a child attains the age of majority”. However, where a party seeks the continuation of support, the onus will be on that party to prove the adult child is entitled to continuing support. For example, the child may have needs relating to post-secondary education or may be unable to withdraw from their parent’s care due to illness or disability.
In Menegaldo v. Menegaldo, the Ontario Superior Court of Justice confirmed that the question of whether a child is unable to withdraw from a parent’s charge is focused on whether the child is financially dependent on the parent.
In Thompson v. Ducharme, the Manitoba Court of Appeal considered what was meant by a child withdrawing from the “charge” of a parent. Given the economic context of child support laws, being in the “charge” of a parent means more than behaviour supervision and includes financial support. The child’s age, health, capacity, income, and academic pursuits are all relevant to whether an adult child can withdraw from their parent’s charge.
Parents Ordinarily Required to Support Children Through Their Education
The first step in deciding support for an adult child is to determine the basis for their eligibility. Frequently, entitlement to support will be founded on a child’s enrollment in a full-time education program. While there is no support cut-off age for children pursuing their education, it is generally more difficult to justify continuing support as the child gets older.
Defining a “Full-Time” Program of Education
Courts prefer to take a flexible approach to determine what constitutes a full-time program of education. In Vohra v. Vohra, Justice Sherr indicated that the provision does not mean full-time attendance at school. A full-time program of education can be less than a full course load as long as the child’s participation is “meaningful and consistent with the program’s purposes and objectives.” This also permits courts to consider a child’s ability and aptitudes. The objective is for parents to support their children while they are fully engaged in their education.
Factors for Determining an Adult Child’s Eligibility to Child Support During Post-Secondary Education
In Menegaldo v. Menegaldo, Justice Chappel set out a list of 12 factors for courts to consider when determining whether an adult child is eligible to receive support while attending post-secondary education. These factors include:
- Whether the child is enrolled in a full-time or part-time course of studies;
- Whether the child is eligible for student loans or other financial assistance;
- The ability of the child to contribute to their own support;
- Whether the child has a reasonable education and career plan;
- In reviewing the child’s education plan, factors include the quality of the plan, duration, prospects of success, the potential benefit of the studies and the costs;
- The child’s academic performance;
- The age, qualifications, and experience of the child;
- The aptitude of the child, their level of maturity, commitment, and sense of responsibility;
- Whether the child is performing well in the chosen course of studies;
- What plans the parents made for the education of their children;
- The means, needs and other circumstances of the parents and the child; and
- The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress.
Eligibility May Be Unaffected by Brief Periods Away From Education
None of the above factors are determinative of the issue, but the starting point will always be whether the child is enrolled in any educational program at all. Some courts have found that a child may retain their status for brief periods away from their education. In Edwards v. Edwards, the Ontario Superior Court recognized that a child may be entitled to support during a modest transition period while seeking employment. Also, many courts have found that a child taking a “gap year” before starting post-secondary studies could remain entitled to support. Absent those limited circumstances, or illness or disability, attendance at school will be required to retain dependent status.
Adult children cannot choose to remain economically dependent on a parent. However, loss of dependent status may not be permanent. A child who has lost that status may be able to regain it through the pursuit of education.
Contact Shariff & Associates in Whitchurch-Stouffville in Markham for Comprehensive Advice on Child Support
The compassionate family lawyers at Shariff & Associates work with clients to obtain fair and equitable resolutions to child support disputes. Whether you are requesting an application for relief or defending against one, our lawyers will advocate for the best possible outcome on your behalf. We are the largest family law firm in Stouffville and we assist clients throughout Markham and the Greater Toronto Area. To review your circumstances with a member of our team, please contact us online, or call us at 905-591-4545.