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Gifts as Income for Child Support

Calgary Alberta Child Support Lawyers help you obtain fair child support orders in Calgary and the rest of Alberta. Calgary and the rest of Alberta have been through tough times. These tough times impact child support payments both in the first instance and in cases where separated parents need to negotiate or litigate new Calgary child support amounts. The best Calgary Alberta Child Support Lawyers understand how to obtain fair support for children. Peter Graburn of our Calgary child support lawyers provides some key tips on Calgary child support.

Calgary Alberta Child Support Lawyers 1 877 602 9900

As we have repeatedly advised in these articles, child support is a basic principle in family law – child support is the right of the child, and the obligation of both parents to pay (depending on their custodial arrangements). But for how long does this obligation continue?  What if the child is no longer a child, but an adult (18 in Alberta; 19 in B.C.)? These days, adult children are taking longer to become truly independent from their parents – travel, further education, sampling careers, etc. often delaying this progress. But for how long do their parents (particularly separated parents who do not agree on the need for continued financial support) have to continue paying support for their adult children? There are many issues to be considered when determining whether adult child support should be paid and for how long.

Our Calgary Alberta Child Support Lawyers explain that the legal obligation to pay child support in Alberta is found in two (2) statutes: the federal Divorce Act (for married couples) and the Alberta Family Law Act (for married and unmarried parents). The Divorce Act requires child support to be paid for any “child(ren) of the marriage”, defined as:

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(a) is under the age of majority and who has not withdrawn from their charge, or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

Top Calgary Family Lawyers Can Help

Accordingly, child support is required to be paid as long as the child remains a “child of the marriage”, even if they are over the age of majority (ie. adult children).  So what circumstances justify an adult child to be deemed a “child of the marriage” to be entitled to receive on-going child support? The most common are:

  • Post-Secondary Education – perhaps the most common situation of continued child support is where the adult child attends post-secondary education (ie. institutes, college, university, etc.) – this is perhaps the most common “other cause” for adult children not being able to withdraw from their parents’ care. In Alberta, this is usually for the first post-secondary degree, however recent case-law suggests this may now be extended until the second post-secondary degree (depending on many factors). Furthermore, the adult child may be expected to contribute to these costs on an increasing “laddered approach” basis;
  • “Failure to Launch” – but what happens if an adult child is not able to become financially independent (ie. find a job) after completing their post-secondary education? What if they are not emotionally or financially mature enough to withdraw from their parent’s care? Would this be an “other cause” justifying continued child support? This would not include young adults who refuse to move out of their parent’s basement and get a job. But the Courts have interpreted the phrase “other cause” broadly, and are recognizing a “broader social reality” (ie. the increasing number of young adults moving back with their parents, etc.) in their approach to whether continued child support for adult children is warranted (see Alberta Court of Queen’s Bench Justice R.A. Jerke’s decision in KMR. v. IWR, 2020 ABQB 77);
  • Illness or Disability – this is a specified reason for adult child support under the federal Divorce Act. In Alberta, the Family Law Act defined a “child” as someone who is under 18 or who is between 18 and 22 and unable to withdraw from their parents’ care because they are a full-time student. Effective January 1, 2020, the Alberta Family Law Act was amended to allow unmarried parents to make an application for on-going child support for their dependant adult children (ie. over 18) with a disability, illness or “other cause” or who are full-time students (removing the previous age limit), bringing the provincial legislation in line with the qualifications for adult child support set out in the federal Divorce Act;
  • Estrangement – finally (while it may not strictly be considered a factor as to whether an adult child is deemed to continue to be a “child of the relationship”), consideration may be given by the Court as to the on-going relationship of the parent(s) and (adult) child. As indicated above, child support (whether of a minor or adult child) is the right of the child and the duty of the parent. But what if a child refuses to speak/have contact with the parent (or worse)? While Courts will usually uphold the obligation to pay child support except in the most “egregious circumstances”, some Courts may take the state of the relationship into account (even if only to determine the level of support to be granted), as indicated by Alberta Court of Queen’s Bench Justice D.A. Labrenz’s comment in CLD v. RJB (2019 ABQB 852) at para. 26:

“It is unacceptable at law and in practice to treat one’s parent as no more than a source of funds, the “parent as wallet” syndrome.”

Calgary Alberta Child Support Lawyers – Conclusion

Our Calgary Alberta Child Support Lawyers point out that as with many areas of law, the answer as to how long the obligation to pay child support lasts is unclear – many factors have to be looked at to determine whether, and for how long, a parent must pay financial support to their adult child.  The Courts have given much direction as to how the legislation (ie. the federal Divorce Act, but not the amended Alberta Family Law Act) should be interpreted, but now appear to be taking a much more expansive approach to this support obligation, often upholding adult child support (particularly for high income earning and professional parents) well into a child’s twenties.

But fear not! Eventually, the adult child will finish school, find a job, and move out – adult child support will end. Alternatively, separated parents may agree (at least between themselves, though not with the adult child) as to their continuing obligation to pay financial support to their adult children as part of a divorce or separation agreement. Alberta Adult Child Support Lawyers at MacLean Law assist their clients to negotiate continuing support obligations for their adult children with their separated co-parent or deal with these continuing obligations through the Court or mediation/arbitration processes.

Call our Calgary Alberta Child Support Lawyers today if you have a Calgary child support questions.