Our Family Law clients often ask whether child support terminates automatically when children turn 18. The Divorce Act states that child support shall be paid for so long as a child who is over the age of 18 years of age is unable to obtain the necessaries of life. The Family Law Act uses similar criteria for children whose parents are not married.
Other than mental or physical disability, the most common reason an adult child would be entitled to ongoing child support is enrollment in a post-secondary educational institution. In Farden v. Farden, the British Columbia Court of Appeal set out several factors to consider. In Alberta the "Farden Factors" were applied by Mme. Justice Johnstone in Pollard v. Pollard, and indicate that merely attending a post-secondary institution is not necessarily sufficient. While each case is different, some of the questions to be answered include:
- Is the child enrolled in full time studies? Full time enrollment will more likely maintain rather than part time.
- Is the child eligible for student loans or other financial assistance? The courts have generally held that it is not the child's obligation to borrow money if either of the parents' have the ability to fund their education.
- What are the career plans of the child? Is the program likely to provide the child with a reasonable career? Is the child is well-suited to the program of study?
- Is the child able to contribute to their own support through part-time employment?
- How old is the child? Generally, the older the child the less likely they will be considered an adult child of the marriage.
- Is the child's past academic performance adequate? A child with stellar academic performance will more likely be considered an adult child of the marriage than a child who does not take their academic pursuits seriously.
- What plans were made for the child's education during the parents' cohabitation? If the parents planned for their children to live at home while attending university or college it is more likely that the child will be considered an adult child of the marriage.
- Has the child unilaterally terminated a relationship with the parent from whom support is sought?
Contact the lawyers at Kirk Montoute LLP for advice and representation if you are faced with an application or are considering making an application regarding child support for a child who is over 18 years of age.