Does Mental Illness Affect Child Support for an Adult Child?

A recent case at the Alberta Court of King’s Bench, P. v. K., 2021 ABQB 900 (“P. v. K.”), continues in a line of case law directing the Courts to examine each individual circumstance to make that determination.

The well-tread law regarding Child Support is set out in the Divorce Act such that child support is owed for the duration of time that children are still a “child of the marriage”.

As a defined legal term “child of the marriage” means, according to Divorce Act section 2:

a child of two spouses or former spouses who at material times

1. 1. Is under the age of majority and who has not withdrawn from their charge, or
   2. 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 to obtain the necessities of life.

Over time it has become generally accepted that secondary or post-secondary education or training amount to “other cause” within the meaning of child of marriage (P. v. K. at paragraph 28).

The governing principle when regarding whether a child is a child of the marriage is that of reasonableness. Accordingly, the court must determine (P. v. K. at paragraph 29)

what is reasonable in these particular circumstances. In fixing child support for children over the age of majority, courts must be prepared to take into consideration the actual circumstances of the child in question, including health status, personal characteristics, abilities and living circumstances.

The facts of P. v. K. provide some insight into how the Courts may look at mental illness as a factor militating toward a child remaining a child of the marriage.

In this case the father stopped paying child support when the child of the marriage turned 18. The mother applied for continued support. A doctor’s Expert Report diagnosed the child in question with major depressive disorder and attention-deficit hyperactivity disorder (ADHD). The child’s depression and ADHD were severe and at the time of the judgement the child was over 20 years old and had only completed half of the credits necessary to graduate high school. The child had failed multiple courses and was slowly attaining credits to graduate at a frequency of approximately one or two classes per semester. The child had also been fired from several jobs and was having trouble finding employment to support himself on account of extreme interview anxiety.

The child had been on medication for the above illnesses for several years.

Two questions arose in concert on these facts: 1) Is the child considered to be a child of the marriage because he is still attending school, and 2) is the child considered to be a child of the marriage because of his mental illness?

The mother provided medical records to support the assertion that the child had not dropped out of school but is merely attending school at a pace that accords better with his current health situation. Justice M. David Gates agreed that the child was still in school and had not dropped out, which suggests he may qualify as a child of the marriage under the “other cause” provision in the Divorce Act, however he expressed concerns over the lack of a plan to assist the child in finishing school and attaining employment.

The child’s inability to finish school stems from his mental illness. An expert medical report provided by the mother affirmed same. Justice Gates was convinced by the evidence and concluded that the child did suffer from illness sufficient to harm the child’s educational and employment opportunities. However, Justice Gates again had reservations and was “left wondering why it has taken upwards of 3 years to refer [the child] to a psychiatrist or other specialist to try to identify the source of these health and other difficulties and come up with a comprehensive plan” (paragraph 45).

On these facts, Justice Gates determined that the child “is currently unable to withdraw from the care of his parents on account of illness” (paragraph 48).

Justice Gates awarded continuing and retroactive child support on an interim and without prejudice basis “given the uncertainties regarding [the child’s] diagnosis and prognosis” (paragraph 48) and directed the parties to reappear before the Court after 6 months to demonstrate that the parties had worked together to “come up with a plan to try to position [the child] for future academic or employment success” (paragraph 49) in conjunction with the child’s physician and psychiatrist.

The Courts took a pragmatic approach to these facts. There was a recognition of the realities of mental illness and the debilitating effects such illnesses can cause in a person’s life. However, the Court also recognized that there are resources available to individuals suffering from such an illness and it is incumbent upon the parties to ensure the child avails themself of those resources because it is in the best interests of that child to do so.