By Suzanne Fleming of Kirk Montoute LLP posted in Child Support on Monday, February 11, 2019.
In Alberta, the law on what constitutes a “child of the marriage” continues to evolve. There is a common misconception that when a child reaches the age of majority (18 in Alberta), he or she is no longer entitled to support. This is incorrect. Pursuant to the Divorce Act (Canada), if a child is over the age 18 but is unable to obtain the necessities of life, he or she may be entitled to child support.
The issue of child support for adult children commonly arises in the following scenarios:
1. the child has a disability that prevents him or her from discharging from his or her parent’s care; or
2. the child is pursuing post-secondary education.
Determining child support for the latter can be complicated, especially since secondary education rarely occurs in a linear fashion. For example, some children may take a year off after high school to travel and/or work, or some may require academic upgrading before they can apply to the post-secondary program of their choice.
It is important to note that a child is not automatically entitled to child support by virtue of being enrolled in a post-secondary institution. The court will consider a variety of factors – commonly called the “Farden facts” – in determining whether child support is appropriate.
For example, the court may ask whether the child is eligible for other forms of financial assistance, such as student loans. Generally, if either of the parents is in a position to fund the child’s education, then the court is not likely to place the obligation to borrow money on the child. The court may also inquire as to whether the child is able to self-support by working part time, and whether the child is in school full-time or part-time. Full-time enrollment is more likely to necessitate ongoing financial support from both parents.
According to recent Alberta case law and important to note, adult child support is not limited to high achievers. While the Courts understand that parents should not be expected to support a child who is in school to party or avoid “real world” obligations, children struggling with poor grades and lack of direction are still entitled to support, and may actually have a greater entitlement to it than a high achieving child.
L.S. v. D.S. 2017 ABQB 584
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