Calgary Adult Child of Marriage Child Support

Calgary Edmonton Marriage Agreement Lawyers

One of the more difficult aspects of Calgary child support, involves cases of children over the age of majority when Calgary Adult Child of Marriage Child Support is claimed. Calgary family law separated parents often ask our Calgary family lawyers what the rules are for disputed Calgary Adult Child of Marriage Child Support cases. Our Calgary family law lawyers would be pleased to answer your Calgary child support questions at our offices located in Banker’s Hall in downtown Calgary.

What Is The Test For Calgary Adult Child of Marriage Child Support?

How do you balance a child’s need for higher education or their special talents against them not being able to support themselves as young adults because their schooling or training may prevent them from working? How do you ensure a child gets serious about their responsibility to take the beginning steps to financial independence after separation of their parents? What about a child taking 1 course per term or who travels in the summers and doesn’t get a summer job? These thorny issues come up frequently for our skilled Calgary Adult Child of Marriage Child Support lawyers.

Who Bears The Onus Of Proving A Need For Calgary Adult Child of Marriage Child Support?

Calgary Adult Child of Marriage Child Support cases place the onus on the parent claiming Calgary child support to prove the child is still entitled to support under the Divorce Act or Calgary child support legislation. In Calgary the age of majority is 18 years of age.

A recent Alberta Court of Appeal case of Kohan v Kohan, 2016 ABCA 125 (CanLII) recently reiterated the test to be applied in Calgary Adult Child of Marriage Child Support disputes and we have extracted the key paragraphs and bolded the really good stuff for you.

Adult Children of the Marriage

[13]           The respondent successfully argued at trial that the eldest child, Nakita, remains a “child of the marriage”, even though she was 19 years of age at trial.

[14]           The Divorce Act, RSC 1985, c. 3 (2nd Supp.), stipulates when an adult child can remain a “child of the marriage”:

2(1) “child of the marriage” means a child of two spouses or former spouses who, at the material time,

(a)   is under the age of majority and who has not withdrawn from their charge, or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 to obtain the necessaries of life.

This definition specifies that the adult child must be “unable” to withdraw from the parents’ charge; that wording signifies something more than a mere lifestyle choice to remain dependent. The case law establishes that an adult child who is continuing with his or her education can remain a child of the marriage. Education is recognized as an “other cause” within the definition.

The [trial judge’s] reasons tie her inability to withdraw from her parents’ care both to her continuing education, and to her inability to make sufficient income from her singing career. There is no discussion of an “other cause”, nor of whether she was “unable” to withdraw from her parents’ care. There are no findings of fact explaining how she came to be 19 years of age but without a high school education. There was no consideration of the factors normally used to determine if an adult child is a “child of the marriage”: Olson v Olson, 2003 ABCA 56 (CanLII) at para. 19, 320 AR 379.

[18]           There is a strong expectation that most teenagers will graduate from high school by the time they are 18 or 19. Obviously, not every student can meet that timeline, but deviations from it call for some explanation. An adult child cannot claim indefinite dependency by completing high school one course at a time, and thus remain a child of the marriage into middle-age. An adult child who has resolved to complete her high school, and looks to her parents to fund that education, is expected to focus diligently on that objective, and pursue it full-time in a structured environment.

[19]           The record discloses that Nakita is finishing her high school by correspondence while she “pursues her singing career”. This is a career and lifestyle choice that she has made. She is entitled to pursue her singing career, and should be encouraged in that regard, but she is not entitled to have it funded by her parents: Ouwerkerk v Ouwerkerk, 2007 ABQB 156 (CanLII) at paras. 19-21, 415 AR 358; Olson v Olson at paras. 29-38. There was no evidence on this record as to when, if ever, Nakita might be able to support herself in the music business. From what one can tell from this record, she may well be taking correspondence courses one at a time; there is no explanation on this record why she cannot also be working full time if that is her total course load. Finishing her high school does not appear to be the real reason why she cannot “withdraw from her parents’ support”. If she is still a child of the marriage, it is not because she is pursuing her education; the reason she has not withdrawn from the care of her parents is because of her career aspirations.

[20]           The burden of proving that Nakita remained a child of the marriage was on the respondent, and the record cannot support that finding of fact. The respondent notes that both parties agreed that Nakita need not be called to testify at the trial, and that neither would attempt to draw an adverse inference from her absence. That, however, did not displace the obligation of the respondent to prove her case. If nothing else, there was a good bit of documentary evidence about Nakita’s present and intended educational plan that was simply missing from this record.

[24]           The records of Nakita’s schooling entered into evidence were wholly inadequate to meet the burden of proof. There was nothing to explain why she had only 48 credits by age 19. There was no evidence on how many courses she was taking each semester, how many courses she had left, or when she might expect to complete high school. She claimed she had some unrecorded credits from Banff from 2013, but failed to prove them. The evidence disclosed that for one month in 2015 Nakita was at an ashram in India studying meditation; this is inconsistent with a diligent pursuit of her education. On this evidence it was impossible for the trial judge to conclude she was “making good progress”, or had been diligently pursing her education. The weight of the evidence is that she at best found it convenient not to withdraw from her parents’ care because she was pursing her singing career. Her attempts to finish her high school education were a secondary consideration. If she was a child of the marriage, it was not for educational reasons.

[25]           The child support award set out in para. 1(b) of the Judgment is set aside.Notwithstanding the deferential standard of review, the respondent failed to prove on a balance of probabilities that Nakita remained a child of the marriage after her 18th birthday.

Higher education for adult children is a legitimate goal but the Calgary Adult Child of Marriage Child Support decision in Kohan shows adult children need to take their education and their responsibilities to be a productive member of society seriously. Like their parents they are encouraged to make a living the old fashioned way with hard work and dedication.