To the separating parents of Millennials and Gen Zers: this one is for you.
The Courts appear to be recognizing the social reality of "delayed adulthood", a concept that was recently described as follows:
"Independence is often achieved at a later age than in previous decades, a trend accentuated by the Pandemic. Young adults are leaving the parental home and marrying, at an older average age. More education and training is required to secure sustainable employment, which means an increasing number of young adults are spending more time in post-secondary institutions. Tuition for many programs has dramatically increased, more rapidly than the rate of inflation. More time in school and higher tuition costs are causing higher debt loads than students were incurring thirty years ago. Increased housing costs have resulted in more young adults [having] to "live at home" while paying off these debts, rather than exhaust further resources to live on their own. Labour market restructuring and the dramatic increase in housing prices, especially in urban areas, are causing significant challenges for young adults. Ultimately, for several economic, social and cultural reasons, increasing numbers of young adults in Canada are delaying "independent living"—they're living with their parents, or at least looking to them for more economic and social support."1
What does this mean for child support payors and recipients? In some cases, a Court may order that monthly child support be paid on behalf of non-disabled adult children who are not enrolled in post-secondary school while they become self-sufficient. The duration of this transition period is not indefinite and would be a reasonable amount of time depending on the circumstances.2
For example, in the recent case of Brun v. Fernandez, the Superior Court of Justice for Ontario noted that other Courts had turned their attention to "delayed adulthood" and have detailed its effect in the context of family law:
"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."3
This news may relieve some, and understandably, may bother others. Why pay child support for someone who is not a child?
Regardless of whose side you take, the bottom line is that the law requires parents to support their children to the best of their abilities.4 According to recent case law, this obligation may include monthly support for someone in their early-to-mid twenties while they are trying to "figure it out".5 This is a trend for which some individuals should prepare themselves.
The Law
Sub-section 15.1(1) of Canada's Divorce Act, which is applicable to parents that were married and are divorcing (or have divorced), permits the Court to make support Orders for children of the marriage.6 The legal term "child of the marriage" is defined in sub-section 2(1) of the Divorce Act as:
"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." 7
For parents that did not marry, the obligation to pay child support rests with the provincial legislation. In Ontario, that would be the Family Law Act, which says the following:
"Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who, (a) is a minor; (b) is enrolled in a full-time program of education; or (c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents." 8
There are differences between the provisions of the Divorce Act and those of Ontario's Family Law Act. For example, the Family Law Act specifically requires parents of an "unmarried child" who "is enrolled in a full-time program of education" to provide support (whereas the Divorce Act does not have this requirement). It is worth noting that there is case law that suggests that an adult child undertaking educational studies "may constitute "other cause" within the meaning of the Divorce Act, but it is not in and of itself determinative of the issue of entitlement to child support".9 This blog examines the recent Brun v. Fernandez case, which applies the Divorce Act, and so the comments made herein are directed more so to the federal legislation.
As the Honourable Justice R. Sonya Jain notes in the Brun case, it is possible to interpret the legislation as adult children who do not have a disability and who are not enrolled in post-secondary as being entitled to child support due if they are unable to withdraw from their parents' charge.10 In determining whether the adult children (who did not have disabilities and were not enrolled in post-secondary) were still "[children] of the marriage", Her Honour underwent a two-step analysis:11
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Is the adult child able to withdraw from their parents charge or obtain the necessities of life?
With respect to the first stage, the Court "focuses in part on whether the child remains financially dependent on the parent".12 Assessing whether an adult child is "unable to obtain the necessaries of life" involves an analysis of whether their "sources of income and other financial assistance" are "sufficient to support [their] reasonable needs having regard for [their] condition, means, needs and other circumstances [...] and the financial ability of each parent to contribute to the child's support".13 -
Is the "cause" of the inability to withdraw permitted under the Divorce Act, i.e., is the cause of that inability a social/economic factor (such as the cost of living and delayed adulthood, or a difficult transition in their life)?
If it is determined that the adult child is unable to withdraw from parental charge under the first step of the analysis, the second step involves determining whether that inability "is due to illness, disability, or "other cause", with the term "other cause" to be interpreted broadly.14 The Courts have found that unemployment due to economic conditions (including a "poor job market"), as well as a "period of transition, delayed adulthood, and the increased cost of living" may also represent an "other cause."15
With respect to the onus of proof, it would lie with the person seeking child support. That person would have to prove that the adult child "is/was unable to withdraw from parental control and is eligible for support".16 According to Justice Jain, "[the] nature and amount of evidence will vary with the case but becomes greater as the adult child grows older".17
Case Study: Brun v. Fernandez
This case is the parties' second Motion to Change.
The parties have two children: a 26-year-old university graduate; and a 24-year-old that since graduating high school "worked sporadically at various part-time jobs", obtained training at a non-accredited post-secondary institution, registered for other training but did not attend, and was un-employed during a period of time. 18 Justice Jain described the 24-year-old as "somewhat lost and lacked direction after he graduated from high school".19
One of the issues addressed in Brun was the child support termination date. The support payor wanted to terminate child support upon the 26-year-old's graduation (in January 2020), and upon the 24 year-old's eighteenth birthday (in July 2017). The support recipient's position was that child support for both adult children should be paid until at least November 2020, which is when the 26-year-old obtained full-time employment.
The Court sided with the support recipient and decided that November 2020 was the appropriate termination date. It is important to note that in this case, the Court considered the payor was in arrears of his child support obligation and did not provide annual financial disclosure. As noted below, the Court was not sympathetic to the payor's arguments about his adult children's ability to become self-sufficient:20
"In this case, inadequate support has been paid for many years. Both the children and the recipient parent have already lost out for a very long time. [...]
The court found it difficult to hear the [payor's] arguments concerning the children's self sufficiency as he himself seems to have taken a very long time to become self-sufficient. [...] Despite [having been imputed a minimum wage full-time income of $23,000], the [payor] continued to be underemployed after the [child support Order] and earned only $13,650 in 2017 working part-time at Domino's Pizza. When the court asked the [payor] how he survived earning only $13,650 in 2017, the [payor] stated that he was dependent on the charity of his family and friends to make ends meet. The [payor] did not see the irony in the fact that he expected [the 24-year-old] to become completely independent as soon as he turned eighteen and graduated high school, while [the payor], at the age of forty-eight was not even working full-time or supporting himself without help from family and friends. He did not have any insight or compassion to extend support for [the 26-year-old] because it took the 26-year-old] almost one year after graduation to find a full-time job. In my view, by 2017, the [payor] had gotten away with being very irresponsible for his children for many years, and he had a very poor work ethic. For most of the children's childhood, the [payor] failed to obtain and/or maintain full-time employment. Then, not long after both children were eighteen years old, he suddenly (and conveniently) was able to obtain and hold a full-time job that pays more than minimum wage."
Finally, her Honour noted that the "economic conditions of unemployment or unstable employment, increased cost of living and the COVID pandemic have all overlapped with their circumstances" and concluded that child support would terminate eleven months after the oldest child completed university, and over three years after the youngest child attained the age of majority.21
The Takeaway
It is not for every adult child that the Court will Order child support to continue past the age of majority where the adult child is non-disabled and not enrolled in school, as a person's chances of success depends on the facts of the individual case (please read: this might not be applicable to you or your family). However, the Brun case dispels the common misunderstanding that child support entitlement ends when a child reaches the age of majority and is non-disabled or not enrolled in school. It also serves as a reminder that many issues in family law are discretionary and can fall into a grey area.
Also authored by: Benjamin Hantsis
Footnotes
1Brun v Fernandez, 2023 ONSC 4787 ("Brun") at para 27, citing Nicholas Bala & John Abrams, "Child Support for Adult Children in Canada: When does Childhood End?" (paper delivered at the National Judicial Institute Family Law Program, Toronto, 16 February 2023) at p. 3.
2. Brun at para 24.
3. Brun at para 28, citing KMR v IWR, 2020 ABQB 77 at para 38.
4. Brun at para 35.
5. Brun at para 28.
6. Divorce Act, RSC, 1985, c 3 (2nd Supp) ("Divorce Act") at ss 15.1(1).
7. Divorce Act at ss 2(1).
8. Family Law Act, RSO 1990, c F3 at ss 31(1).
9. Trecroce v Chorney, 2023 ONSC 96 at para 19.
10. Brun at para 10.
11. Brun at para 10.
12. Brun at para 11, citing Weber v Weber, 2020 ONSC 4098 ("Weber") at para 57.
13. Brun at para 11, citing Weber at para 58.
14. Brun at para 13, citing Weber at para 59.
15. Brun at paras 22-23.
16. Brun at para 10.
17. Brun at para 10.
18. Brun at para 21.
19. Brun at para 21.
20. Brun at para 30.
21. Brun at para 31.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
