The best BC adult child support lawyers know child support for adult children can be a contentious area. In today’s blog savvy associate lawyer Chris Park explains the key principles of child support for adult children. Where a child lives and what the child’s income and resources are such as part time work, RESP’s, bursaries, scholarships and student loans matter in these cases. We may be old school, but we think a child should do their best to partially contribute to their support once they are over 19 as it helps them take the steps they need to become a successful member of society. It is also important that a child dedicates themselves to achieving good grades and good attendance if they expect continued child support. So when is child support payable for adult children in BC?
Best BC Adult Child Support Lawyers
Is child support payable for “children” who have reached the age of majority? Is child support payable for “children” in their twenties who remain living with one or both of their separated parents? In this article, we will provide a brief overview of the factors and considerations in determining whether adult children are entitled to child support.
MacLean Law handles the most complex high net worth adult child support cases and we have set records for both interim and permanent child support at $116,000 a month combined – YES PER MONTH. Here is what the court stated:
The table amount (around $30,000 per month) was inappropriate for a child under the age of majority residing away from home while pursuing post-secondary education. The condition, means, and needs of the child include consideration of the parents’ wealth and the child’s continued part-time residence with the recipient. The ability of each parent to contribute to the child’s support is also relevant, and the payor was ordered to pay $16,000 retroactive monthly child support for the period to and after the child reached the age of majority.
See our win in Devathasan v. Devathasan, 2019 BCSC 661
Child Support For Adult Children
Onus
Once the age of majority is reached, the parent seeking child support bears the onus, or has the responsibility, of proving the child remains a “child of the marriage” under family law (Nitchie v. Nitchie, 2014 BCSC 468 at para. 18).
The definition of a “child of the marriage” was clarified in Ciardullo v. Ciardullo, 1995 CanLII 304 (BC SC), where the court stated:
Merely because a child is shown to be attending school or college is not sufficient to bring the child within the definition of “child of the marriage”. It must be shown the child is unable by reason of attending school or college to withdraw from the charge of the parents or to obtain the necessaries of life. The onus rests upon the spouse seeking the order for support to satisfy the court in that regard.
This definition was elaborated in D.B.S. v. S.R.G., 2006 SCC 37 where the Supreme Court of Canada said, “An adult, i.e., one who is over the age of majority and is not dependent, is not the type of person for whom Parliament envisioned child support orders being made. This is true, whether or not this adult should have received greater amounts of child support earlier in his/her life. Child support is for children of the marriage, not adults who used to have that status.”
However, this does not mean that any adult children who are financially dependent on their parents are automatically still children of the marriage under family law. In Dring v. Gheyle, 2018 BCCA 435 (CanLII), the Court of Appeal said:
[50] If an adult child is still living at home, “but is neither ill nor disabled nor under the effect of [another reason] by which he or she is unable to withdraw from parental charge or to obtain the necessaries of life, then that adult child is no longer” a child entitled to support: Ethier v. Skrudland, 2011 SKCA 17 at para. 16. As noted in Kohan v. Kohan, 2016 ABCA 125 at para. 14, the wording “signifies something more than a mere lifestyle choice to remain dependant.”
In short, the parent seeking child support for an adult child must show that the child is unable, for a legitimate reason, to withdraw from the charge of their parents or to obtain the necessaries of life.
So what are some legitimate reasons that adult children may be unable to withdraw from the charge of their parents?
Post-Secondary Child Support for Adult Children Tel: 604 602 9000
As Julien Payne says:
“Children over the age of majority may reside away from home and/or earn a significant income. In these circumstances, the adult child’s expenses will be quite different from those of a typical child under the age of majority. In exercising the discretion to move away from the usual approach under the Guidelines, a court will find it helpful to consider (1) the reasonable needs of the child; (2) the ability and opportunity of the child to contribute to those needs; and (3) the ability of the parents to contribute to those needs. The reasonable needs of the child has two aspects, namely (1) the child’s needs for accommodation, food, clothing, and miscellaneous expenses, and (2) the child’s actual post-secondary expenses.”
An adult child completing their post-secondary studies is a common reason that they may still be dependent on their parents’ financial support. However, simply attending post-secondary school is not an automatic trigger of continued child support.
No Slacking Off at Post Secondary If You Want Child Support
When is child support payable for adult children BC?
When an educational plan is not realistic, achievable, or in accord with economic reality, support will not be ordered, and to qualify for child support, the post-secondary studies must be reasonable.
Factors relevant to determining whether a child’s educational pursuits are reasonable include, but are not limited to:
- whether the child is studying on a part-time or full-time basis;
- whether the child has applied for, or is eligible for, student loans or other financial assistance;
- whether the child’s career plans are reasonable and appropriate;
- the child’s ability to contribute to their own support through part-time employment;
- the child’s age;
- the child’s past academic performance and whether the child is demonstrating success in their chosen course of studies;
- the parents’ plans for the education of their children, particularly where those plans were made while the family was intact; and
- in the case of a mature child who has reached the age of majority, whether the child has unilaterally terminated the relationship with the parent from whom support is sought.
Farden v. Farden, 1993 CanLII 2570 (BC SC) (Master)
Best BC Adult Child Support Lawyers-Medical Causes
Apart from attending post-secondary studies, a child may be unable to withdraw from the charge of their parents due to medical reasons. In such a case, medical evidence is required to show that an adult child is still dependent on their parents due to illness or disability (J.V. v. C.H., 2018 BCSC 1732 at para. 49). In considering whether a particular medical reason is sufficient to order child support, the courts will look to the child’s employability and the extent of the disability (H.M.R. v. D.G.R., 2010 BCSC 647 (CanLII)).
Best BC Adult Child Support Lawyers-How much Child Support should be paid? Tel: 604 602 9000
With that said, an adult child remaining a “child of the marriage” in family law does not automatically mean that the child support table amount is payable. In other words, the amount of child support for an adult child may be different from the amount of child support for a child below the age of majority, even if the parents’ income were the same.
This is because an adult child may have resources or living arrangements that are considerably different from a child below the age of majority. For example, if an adult child resides away from home for a portion of the year in order to attend post-secondary school, then realistically, the parent’s expenses for the months that the child is away at school would be decreased. This may mean that the payor parent paying the full table amount for the entire year is an overpay.
As set out in Family Law Sourcebook:
The more closely the circumstances of an adult child resemble those of a minor living at home, the more likely the approach in s. 3(2)(a) will be found appropriate (McClement). Generally, s. 3(2)(a) will be appropriate when the adult child pursuing post-secondary education lives at home in circumstances that closely mirror that of a minor child, and s. 3(2)(b) will be appropriate when the adult child has earnings of their own (W. (L.M.) v. W. (R.L.), 2016 BCSC 758).
The support payable for an adult child living away from home in circumstances differing from a child under the age of majority will likely be determined under s. 3(2)(b), though each case must be assessed on its circumstances. In contrast, a support order for a child under the age of majority and living away from home while attending school will be the applicable table amount, plus any amount determined to be appropriate under s. 7, and subject to the discretion in s. 4 if the table amount is found to be inappropriate (M. (P.R.) v. M. (B.J.), 2012 BCSC 1795, affirmed 2013 BCCA 327).
In such cases, typically, the parent receiving support will only receive a portion of the table amount for child support, considering how much time in a year the child spends living at the parents’ residence. If a child is residing at the parent’s residence for half of the year, that parent may only receive ½ of the child support table amount for that child. However, in these cases, the payor parent would still be expected to contribute their share in the child’s living expenses for the months that they are away from home. There are numerous factors to consider when deciding: when is child support payable for adult children BC?
Best BC Family Lawyers At MacLean Law Can Help
Where the child resides throughout the year is not the only consideration in determining the amount of child support payable for an adult child. The Child Support Guidelines require that the “means” of the child be considered in calculating the amount of support. The courts recognize that while parents have a responsibility to provide support to adult children, this must be balanced against the responsibility of young adults to contribute to their own education and living costs. Contact MacLean Law’s Best BC Adult Child Support Lawyers if you have questions about: when is child support payable for adult children in BC?
