Vancouver Adult Child Support Lawyers answer the key question Is Child Support Payable when an Adult Child is Still Pursuing Further Education Children are entitled to a similar level of support and standard of living as if the family unit remained intact. Many people tell our Vancouver Adult Child Support Lawyers that they thought child support automatically ends at 19. This is true sometimes but simply wrong in other cases. Today Joty Sandhu helps Vancouver family law clients understand the rules for support for children over the age of majority.
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Is the Adult Child Still a “Child of the Marriage”?
Vancouver Adult Child Support Lawyers explain that under s.2 of the Divorce Act, a “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a) is under the age of majority and who has not withdrawn from their charge, or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.
The age of majority in BC is 19 as per s.1 of the Age of Majority Act in BC. Therefore, there is no absolute duty, nor any prima facie legal obligation upon a parent to support an adult child 19 years of age or older.
However, there is much authority that the pursuit of education can be a sufficient “other cause” that may render an adult child to be unable to withdraw from the parental charge or obtain the necessities of life [Farden v. Farden, [1993] B.C.J. No. 1315 (S.C.)]. Therefore, if it is established that a child remains a “child of the marriage” because of that child’s attendance at a post-secondary institution, then a parent will have an obligation to support the child in pursuit of further education.
In a claim for child support, the parent seeking maintenance bears the onus of proving that a child over the age of majority is unable to withdraw from his or her control or is unable to obtain the necessaries of life.
Whether or not attendance in a post-secondary institution will be sufficient cause for a finding that the child is still a “child of the marriage” requires examination of all the circumstances. Our top-rated Vancouver Adult Child Support Lawyers warn it is not a conclusion which follows automatically from proof of attendance at the institution (Neufeld v. Neufeld, 2005 BCCA 7).
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The leading case Farden v. Farden provided various circumstances for the courts to consider in claims of this nature:
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;
(i.e. will the child’s specific educational program result in them gaining remunerative employment?)
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.
(Note, this factor weighs into the court’s analysis where the payor parent is a biological parent to the adult child, rather than a step-parent.)
Examples of how these factors are considered in recent BC and Alberta cases:
Malbon v. Malbon, 2017 BCSC 194
The parties were married for 22 years and had two adult children. The Mother sought child support for an adult daughter, age 27, who took 6 years to complete a 4-year degree and spent two years travelling. She now returned to university to pursue a Master’s degree. The daughter was able to work part-time and lived with her Mother. The Court concluded that this was not a case where the adult daughter had been unable to withdraw from parental charge. The daughter decided to take a “slow and incremental approach to life”, which she was entitled to do. However, there was no legal basis to order her father to pay child support.
Jiwani v. Jiwani, 2018 BCSC 1517
Following the parties’ separation in 2014, the parties agreed that the Mother would be responsible for the adult child’s post-secondary expenses. By 2015, the Mother had already paid $80,000 adult child’s education and living expenses. The son was put on academic probation and eventually dismissed from the university for one year. The adult child was subsequently diagnosed with depression and ADHD and the academic dismissal was deferred by the university. The adult child was then readmitted into his education program with conditions. The Mother brought an application seeking a declaration that the 22-year-old son was no longer a child of the marriage. The court concluded that the son was considered a child of the marriage as long as he met the university’s conditions. However, he was also required to contribute to his education by working part-time. The Mother was responsible for paying a maximum of $22,000 per year for the next two years.
Taggart v. Taggart, 2019 ABCA 78
The Alberta Court of Appeal upheld the Chambers Judge’s finding that the adult child was no longer a child of the marriage, concerning the considerations, cited in Farden. On the appeal, the Mother argued that the Chambers Judge put too much emphasis on the daughter’s “gap year” when she lived with her boyfriend after failing to complete her course of studies at Mount Royal University. She also argued that where parents have higher incomes, there is less of a requirement that the child looks to student loans to assist in financing post-secondary education.
The Court of Appeal agreed with the Mother’s argument respecting parents with higher incomes. However, the Court of Appeal upheld that the adult child was no longer a dependent child of the marriage and considerable deference was given to the decision of the Chambers Judge, that the adult child had withdrawn from “parental charge” due to the fact-based and discretionary nature of the issue.
Call Our Top Rated Family Lawyers Today Across BC and in Calgary 1 877 602 9900
To assess whether adult child support is payable in your particular set of circumstances, call Joty Sandhu of our team of Vancouver Adult Child Support Lawyers at MacLean Law’s Vancouver office for legal advice.
