A child can still be entitled to support even after turning 19. The Family Law Act and Divorce Act do not have a cut-off age. If the child cannot withdraw from their parent’s care or charge, then the child may still be entitled to support.
Who is a child for child support purposes?
Generally, all parents have a duty to support their children. Who qualifies as a “child” for “child support”? The definition of “child” is found in section 146 of the Family Law Act and Section 2(1) of the Divorce Act. In British Columbia, a child is entitled to support if
(a) They are under the age of 19, unless they have voluntarily withdrawn from the care of their parents; or
(b)They are over the age of 19 if they cannot, due to illness, disability or other reason, to withdraw from the care from their parents or obtain the necessaries of life.
“Voluntarily withdrawn” means that the child has freely decided to live independently, such as a 16-year old who moves out to live with his or her boyfriend or girlfriend. If the child moves out because their home circumstances were intolerable, then they will still be entitled to child support.
Under (b), a child is not necessarily entitled to child support just because they are ill or disabled. It is whether they can withdraw from parental care and obtain the necessaries of life that determines whether they are entitled to child support.
The most common reason for child support to be paid for a child over the age of 19 is that the child is attending post-secondary education. If attending post-secondary education prevents the child from withdrawing from their parents’ charge or obtaining the necessaries of life, then the child may continue to be entitled to child support. (Attending post-secondary education does not automatically mean that a child is entitled to further support.) If the matter went to Court, a judge would consider a range of factors to decide whether child support continues to be payable. Those factors, as described in the case of Farden v. Farden, 1993 CanLII 2570 (BC SC), include the following:
(1) whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies;
(2) whether or not the child has applied for or is eligible for student loans or other financial assistance;
(3) the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;
(4) the ability of the child to contribute to his own support through part-time employment;
(5) the age of the child;
(6) the child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;
(7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;
(8) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.
The above list is often called the “Farden Factors”.
Although academic performance is on the list above, a child will not normally be disentitled to support due to their grades. The courts recognize that children have a range of abilities, different programs have different levels of difficulty, and children can change their plans. Some children intend to pursue one program, do badly and have to change their plans. That is just part of education and not a reason to disentitle a child to support.
The list also refers to “whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought”, but this is rarely applied. The child’s actions must be especially bad before the court will decide that their misconduct disentitles them to support. If there is a reason why the child has terminated their relationship with the parent, then the court is unlikely to hold it against the child.
There is no “cut-off” age at which a child is clearly no longer entitled to child support, or a “cut-off” education level after which parents do not have to contribute. For some families, child support will end after the child receives his or her first degree or diploma. For others, parents might be expected to support the child further.
Since there is no “cut-off” age or education level, it is possible for a child to take time off from school before starting post-secondary education, or to take a break during school. If that happens, the court will consider the reason why the child was not going to school and whether they were able to live independently. If the child took a break from school because one of the parents was not contributing to their education and the child simply could not afford to continue, the court is unlikely to hold it against the child.
Is there a time limit for applying for child support?
Yes, the child must still be entitled to support at the time that the application is filed. Adults who are no longer children are not entitled to backdated child support: D.B.S. v. S.R.G., 2006 SCC 37; Semancik v. Semancik, 2011 BCCA 264. It is not necessary for the child to be a child when the order is made, but the child must have been a child when the application is filed.
Brennan J. Clarkson has helped clients with family law disputes including divorces and common law separations since 2008. He practices family and estate law in Port Moody, British Columbia at Clarkson Law Corporation.
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