For married couples, the Divorce Act R.S.C. provides that child support is payable for so long as children fall within the definition of “a child of the marriage.”
Section 2(1)(b) of the Divorce Act defines “a child of the marriage” to be a child who is “the age of majority (19 in B.C.) or over and under their parents’ charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.”
For unmarried couples the Family Law Act of B.C. defines a child at section 146 to include:
“a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians.”
A child with a disability who is unable to earn sufficient income to support themselves is clearly entitled to receive child maintenance for so long as that disability continues. Also the courts have held that children who are pursuing post-secondary studies qualify as being unable to obtain the necessaries of life. Traditionally courts have awarded child maintenance while a child is pursuing their first post-graduate degree.
The courts are recognizing now that children can’t necessarily secure employment after obtaining their first degree and often are required to take post-graduate degrees or courses.
Each case will be treated differently to determine whether or not it is reasonable for child maintenance to continue but the factors a court will consider include:
1. The financial circumstances of the family;
2. The child’s educational and career plans;
3. The child’s age;
4. The child’s academic performance;
5. The family’s education expectations;
6. The parent’s involvement in the decision-making process; and
7. The extent to which the program prepares the child to become financially independent.
Deborah A. Todd
