So your child has turned 18 and you’re wondering whether Child Support is still payable? The answer is never black or white in law, but there are various factors to consider to determine this issue (each case is fact specific). Section 2 of the Divorce Act defines a child of the marriage as a child of two former spouses who, at the material time, (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 obtain the necessaries of life.
The onus to prove the child fits into this definition rests on the parent seeking child support for that child who is over the age of majority. Although your child may be an adult according to the law, for the purposes of child support, if your child is unable, by reason of illness, disability OR OTHER CAUSE, to withdraw from your charge or obtain the necessaries of life, child support may still be payable. For instance, if the child is over the age of majority and attending post-secondary studies (full time and receiving passing grades), the child may still be entitled to receive support.
In Lalonde v. Lalonde*, Justice Lee considered the following 8 factors:
- 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.
- Whether or not the child has applied for, or is eligible for, student loans or other financial assistance.
- 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.
- The ability of the child to contribute to his or her own support through part-time employment.
- The age of the child.
- The child’s past academic performance, whether the child is demonstrating success in the chosen course of studies.
- What plans the parents made for the education of their children, particularly where those plans were made during cohabitation.
- 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.
Each family’s situation will be different and therefore, it is important to determine how your particular fact scenario could be decided.
For more information about your particular situation, please contact WAM Family Law.