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Jan 2, 2017

Child Support For Adult Children: When Does It Ever End?

by Steve Benmor

Steven BenmoreUnlike child support for minors, support for adult children of divorce remains an area where there is some judicial discretion. There are, however, some clear trends in the case law. Courts in Ontario are now more likely than ever to order child support for children over the age of majority and to order such support for a longer duration.

The authority for a court to order child support for children over the age of majority (defined as 18 years of age in Ontario) is found in the Divorce Act (Canada), the Family Law Act (Ontario) and the Child Support Guidelines, which include a Table for support based on income and the number of children in the family. These statutes differ in the criteria for eligibility for support of an adult child. The Family Law Act (Ontario), which governs cases where parents are unmarried, has a narrower test, with eligibility only if a child over the age of majority is “enrolled in a full-time program of education” and has not voluntarily withdrawn from parental control. The Divorce Act, which governs cases where parents are (or were) married, has a broader test, allowing support for a child over the age of majority who is “unable, by reason of illness, disability or other cause, to withdraw from [parental] charge.” The words “other cause” have been interpreted to include enrollment in post-secondary education. Despite this broader test, however, the vast majority of claims for support for adult children under the Divorce Act are cases where a child is pursuing post-secondary education.

The parent seeking support for the adult child bears the onus of proving entitlement. Failure to provide sufficient evidence regarding the child's eligibility may result in a claim for child support to be dismissed. The most prominent considerations in determining entitlement include:

a)    the age of the child;

b)   whether the child is in fact enrolled in a full-time course of studies;

c)    whether or not the child has applied for, or is eligible for, student loans or other financial assistance;

d)   whether the child has a reasonable and appropriate career plan or is simply attending school because there is nothing better to do;

e)    the ability of the child to contribute to his own support through employment;

f)     the child’s past academic performance and whether the child is demonstrating success in his chosen course of studies;

g)    what plans the parents have made for the education of their child, particularly where those plans were made during cohabitation; and

h)   whether or not the child has unilaterally terminated a relationship with the parent from whom support is sought.

The governing principle in determining whether child support for an adult child should be ordered is reasonableness. There is no arbitrary cut-off point based on age or academic achievement. Most courts have accepted that it is reasonable for a child to receive support while obtaining a first degree or diploma. However, a child's entitlement to support for pursuing a second degree or diploma is not so clear and is generally case specific.

It is important to note that entitlement to child support is not static. That is, an adult child may slide in and out of entitlement. For example, an adult child may take a break from his studies for medical reasons, financial reasons, travel or delay in enrollment, potentially resulting in a suspension of support. The adult child may subsequently re-enroll in school and re-instate his entitlement to support.

Child support is less likely to be reinstated where:

  1. the child has taken a break from his studies for over two years;
  2. the child is living with a boyfriend or girlfriend;
  3. the child's employment during the break rendered him economically independent; or
  4. the child did not maintain a clear plan for future education during the break.

Once entitlement is established, the Child Support Guidelines are then used to determine the amount of child support, which could include the Table amount for food, clothing and shelter, plus an additional contribution towards a child’s special and extraordinary expenses, as defined in section 7 of the Child Support Guidelines.

Where separated parents cannot agree on the level or duration of child support for adult children, Ontario courts are requiring parents to support their children until they are able to secure a post-secondary education in order to become financially independent. In Ontario, this obligation has no fixed expiry date.

Steve Benmor is a certified specialist in family law by the Law Society of Upper Canada and offers divorce mediation and arbitration. He can be reached at steve@benmor.com.