When does child support end for adult independent children? Does child support end if the child is estranged from the parent? Does child support end when the child reaches the age of majority? What if the child is over the age of majority but is pursuing post-secondary education?
Those questions were asked by the payor parent in Urquhart v. Loane, 2016 PECA 15, with the Court of Appeal answering as follows:
- When the child is over the age of majority but is still a “child of the marriage” as set out in 2(1)of the Divorce Act, the Federal Child Support Guidelines amount is to be paid unless the court considers that to be inappropriate.
- The onus to prove the child is still a “child of the marriage” is on the parent seeking child support. The onus is usually not a heavy one where a child over the age of majority is pursuing the first level of post-high school education. The onus becomes more burdensome when the issue concerns post-graduate education.
- Unilateral withdrawal of a child from the child/parent relationship rarely stands alone as a factor disentitling an adult child to support.
Father asks “When does child support end?”
Urquhart v. Loane was an application by Mr. Urquhart to end child support for Jill, his 18-year-old step-daughter. Jill’s biological father died when she was three years old. Jill’s mother subsequently met and married Mr. Urquhart, and together they had another daughter. During their 10-year marriage, Mr. Urquhart stood in loco parentis to Jill (in loco parentis is Latin for “in the place of a parent”). Following separation in 2013, Mr. Urquhart paid child support for both Jill and his biological daughter, plus 70% of the extraordinary expenses for both children.
In 2014 Mr. Urquhart brought an application to end child support for Jill, arguing that when she turned 18 she was no longer a “child of the marriage” as defined in s. 2(1) of the the Divorce Act:
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(a) is under the age of majority and who has not withdrawn from their charge, or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;
Father’s grounds for seeking to end child support
To support his position that the child was no longer a “child of the marriage”, the father relied on two grounds:
- Because the child had terminated her relationship with him, the support should terminate; and
- The adult child had the means to support herself and thus needed no support.
The court was of the view that neither of those grounds provided the proper foundation to end child support. Let’s examine each of these grounds in more detail:
- Can a child’s unilateral termination of the relationship end child support?
The father argued that the child’s unilateral termination of the relationship is determinative – she is an adult; she made that choice; she must live with the consequences. The Court of Appeal found that Jill remained a child of the marriage notwithstanding her decision to terminate her relationship with her father. In fact, a unilateral withdrawal of a child from the relationship with a parent rarely stands alone as a factor disentitling an adult child to support and, the threshold for such a finding is high. At para. 28, the court noted that the cases that deal with unilateral termination look at such factors as:
(a) was the termination justified or unjustified;
(b) the length of time the parties have been estranged; and
(c) the efforts made by the parent to keep the relationship alive.
In the Urquhart case, the relationship between father and daughter had been strained. As a result of an incident in 2013, Mr. Urquhart entered into a peace bond which imposed restrictions on his contact or access with Jill. Subsequently, the father breached the recognizance, pled guilty, and was placed on probation for a year during which time he was to have no contact with Jill. When the application to end child support was decided by the courts, the probation order had been expired for approximately one year, but during that time the father made no effort to rekindle his relationship with the child. Jill made it clear that she does not like the way he treats her and her mother. Given those circumstances, the Court of Appeal rejected the estrangement as a reason to end child support:
[30] The termination of the father/daughter relationship cannot be entirely laid at the feet of the child. The father’s behaviour, specifically that which resulted in the s.810 recognizance and the breach of that recognizance, justify the child’s response. The father’s failure to do anything that might entice the child to change her mind may well lead one to the conclusion that he does not want to patch up his relationship with his daughter so much as to seize the chance to terminate child support.
- Does the adult child have the means to support herself?
In Urquhart, the adult child was clearly not financially independent. She had just turned 18 and was in full-time attendance in university. She earned $5,194 in the year prior to the trial. Her affidavit evidence indicated that after paying some of her university expenses, she had “no money left over to pay for anything.” Quite clearly she was still a child of the marriage and unable to withdraw from parental care.
When does child support end for adult children? (And if it doesn’t end, how is the amount of child support calculated?)
In rendering its decision, the Court of Appeal stated that the general approach that the courts should adopt in dealing with the issue of support for an adult child involves three steps (at paras. 35 to 37):
- The court should determine whether or not the adult child remains a “child of the marriage” as set out in 2(1)of the Divorce Act.
- If the child remains a “child of the marriage” despite being over the age of majority, then the court should next consider whether the table amount of child support under the Federal Child Support Guidelines is inappropriate (the table amount is to be paid unless the court considers that to be inappropriate).
- If the court considers the table amount inappropriate, the court is directed by s.3(2)(b) of the Guidelinesto inquire into the condition, means, needs and circumstances of the child and the financial ability of each spouse to contribute. The closer the circumstances of the child are to those upon which the usual Guideline approach is based, the more likely that the table amount will be appropriate and vice versa. Generally, the table amount will be inappropriate when the child is attending school away from her home.
It is important to note that while this is the general approach, each case stands on its own facts. Courts are bound by the Guidelines but parties are free to contract outside the Guidelines so long as it is in the best interests of the child (Divorce Act, s.15(5)). In the Urquhart case, the parties had entered an agreement just six months prior to the application to end child support. The agreement stated that Mr. Urquhart would pay child support according to the table amount and the father’s line 150 income, as well as the father’s “proportionate share” of s. 7 expenses. Absent the negotiated agreement, the court would have been inclined to think that s. 3(1) of the Guidelines was inappropriate in this case, but given the freely negotiated agreement, the father was ordered to pay child support according to the table amount and his “proportionate share” of s. 7 expenses (which includes university tuition).
The bottom line: When does child support end for adult dependent children?
Answering the question “When does child support end for adult children?” depends on a number of factors, including whether the spouses have negotiated an agreement in relation to child support. Absent a negotiated agreement, the general rule is that child support is paid for a child over the age of majority if the child is still a “child of the marriage” as set out in s.2(1) of the Divorce Act. The onus to prove the child is still a “child of the marriage” is not usually a heavy one where a child over the age of majority is pursuing the first level of post-high school education. Unilateral withdrawal of a child from the child/parent relationship rarely stands alone as a factor disentitling an adult child to support.
