What is a “Child of the Marriage”?
A common misunderstanding is that child support ends when a child turns 18 years old. In reality, most parents of “adult” children know that their children do not magically become self-sufficient upon their 18th birthday, with many still being in high school or entering their first year of what can be many years of post-graduation study, whether it be in university, college, technical school or otherwise.
The Divorce Act, in its current form, sets out the following as the definition for a “child of the marriage” for whom support is payable:
child of the marriage means a child of two spouses or former spouses who, at the material time,
- (a)is under the age of majority and who has not withdrawn from their charge, or
- (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 to obtain the necessaries of life; (enfant à charge)
When the version of the Divorce Act currently in force was drafted (1985) there was undoubtedly a different expectation of children and a vastly different ability for children, upon becoming adults, to attain self-sufficiency. Over time, the Court’s have come to interpret the “or other cause” to include attendance at full-time post-secondary education, broadening the scope of what was likely intended by the drafters of the legislation.
Very recently, the Alberta Court of Appeal has commented in two cases on whether this definition needs to be even more inclusive and to recognize a broader social reality. In Brear v Brear, 2019 ABCA 419, Justice Pentelechuk made the following comments on this issue:
There are few children, whether or not from separated or divorced families, who are economically self-sufficient on their 18th or 19th birthday or in the month they complete high school. But unless a child is entering post-secondary studies, the common reality is child support obligations of the payor parent often cease on or close to these dates…
Indeed, Statistics Canada census data shows that while more young adults may be moving back home than in the past, an even greater proportion are staying in their parents’ home longer. The percentage of young adults aged 20 to 34 living with at least one parent increased from 33.1% in 2006 to 34.7% in 2016. For those aged 20 to 24, the proportion “co-residing” with their parents rose from 58.3% in 2001 to 62.6% in 2016. For those aged 20 to 24 and living with their parents in 2011, 69% reported they had never left their parents’ home.
In KMR v IWR, 2020 ABQB 77, Justice Jerke rejected the notion that child support could potentially be payable indefinitely because the current social and economic conditions appear to affect an adult child’s ability to become economically self-sufficient, but found that the current social and economic conditions may support an order of child support for a reasonable transitionary period for an adult child who is not in school full-time, or who has ceased their post-secondary education or training, with a reasonable transition period depending on the circumstances of each particular case.