Most people who come to me for advice believe that their obligation to pay child support ends when their child reaches the age of 19. In fact, this is not always the case. A parent’s child support obligations continue based on that parent's gross income as long as the child remains a "child of the marriage."
So what exactly is a child of the marriage?
The term applies to a child who is over the age of 19 and is unable to withdraw from their parents' care. There could be a variety of reasons for this continued dependency. One common example is where a child pursues post-secondary education - in such cases, the child is generally presumed to be dependent on his or her parents.
There are exceptions, however. For example, a court is unlikely to require a parent to financially support an adult child’s academic endeavour where the child enrolls in a program of study because they have nothing better to do, they do not have realistic goals or a prospect of remunerative employment, or they are earning poor grades and showing a lack of commitment to their studies.
In addition, even if there are realistic employment prospects related to the chosen course of studies and commitment to obtaining a higher degree, courts will generally expect the child of the marriage to contribute financially as well. The court will also impose limits on support in some cases, such as where a child is taking an unreasonable amount of time to complete their studies.
When considering whether child support should be paid for an adult child who attends post-secondary education, the courts look at a number of factors. There is no standard checklist, but a few examples of factors the court has considered persuasive in the past are:
- whether the child is studying on a part-time or full-time basis
- whether the child has applied for or may be able to obtain student loans
- the child’s age
- whether the child is seeking to obtain a first or second degree
- the child's level of aptitude in the course of study chosen and degree of success in same
- the plans parents had during the relationship for the education of their children
- whether the child in question has unilaterally terminated the relationship with the payor parent
One final caution: Parents who intend to seek child support for their adult children should keep in mind that the timing of the application is crucial. You cannot bring an application for a new support order addressing an amount going forward or an order for retroactive support for a child over 19 if they are no longer a child of the marriage within the meaning of the Divorce Act. Such an action must be commenced while they are still "a child of the marriage" or you will not have standing to make this claim.