In BC Family Law, the term ‘child of the marriage‘ describes either: a child of two spouses or former spouses who is under the age of majority, or a child over 19 who cannot withdraw from parental care due to conditions such as illness, disability, or higher education pursuits.1 This prolongs parental financial obligations, contrary to the widespread belief that these duties cease when the dependent reaches legal age. Court decisions weigh several factors, including the child’s ability to detach from parental care, academic commitments, and their relationship with the paying parent. Further understanding of this complex issue can be gained by exploring the finer details of the law.
Key Takeaways
- ‘Child of the marriage’ in BC refers to a child over 19 who cannot withdraw from parental care due to circumstances like illness, disability, or education.
- Parents may be financially responsible for such a child, a responsibility that often extends beyond the age of majority.
- Courts consider factors like the child’s ability to withdraw from parental care, relationships, and the timing of the child support application when making decisions.
- Paying for post-secondary education may be required, but it’s not an absolute obligation and depends on factors like academic commitment and financial contribution.
- There are exceptions to this rule, such as if the child shows a lack of commitment to studies or takes an unreasonable time to complete them.
Understanding ‘Child of the Marriage’
Delving into the term ‘child of the marriage,’ it is important to understand that it is sometimes used to specifically refer to a child who, despite being over the age of 19, remains unable to withdraw from their parent’s care due to various potential circumstances. This can include illness or disability or pursuing higher education.
In the context of family law, when a child is considered a ‘child of the marriage,’ parents may have ongoing financial obligations. This is a common misconception, as many believe their responsibility ends when the child reaches the age of majority. However, situations such as a child’s pursuit of post-secondary education may extend parental obligations.
While this is generally the case, certain exceptions exist. The court may not require a parent to support an adult child’s academic endeavours if they enrol without clear goals, demonstrate a lack of commitment, or have poor academic performance. Even with clear goals and commitment, the court typically expects the child to contribute financially to some extent.
Understanding the concept of a ‘child of the marriage’ is crucial in family law, especially in situations involving child support and parents’ responsibilities towards their adult children.
Factors Influencing the Court Decision
Analyzing the factors that influence a court’s decision regarding child support for adult children requires a nuanced understanding of the law and the unique circumstances of each case. The court takes into account several factors when deciding whether an adult child qualifies as a ‘child of the marriage‘ and is thereby entitled to support.
The primary consideration is the child’s ability to withdraw from their parents’ care. This could be due to illness, disability, or another cause. However, each case is evaluated individually, and the court can consider other factors such as the child’s age, their academic commitment, and significant employment prospects upon graduation.
The court also examines the child’s relationship with the payor parent. If the child has unilaterally terminated the relationship, the court may be less inclined to order support. Additionally, the court could expect the child to contribute financially to their education.2
It’s important to note that the timing of the application for support is essential. Parents must file the request while the child still qualifies as a ‘child of the marriage’ to be eligible for support.
Paying for Post-Secondary Education
The financial responsibility for an adult child’s post-secondary education often becomes a complex issue in family law, with various factors influencing whether parents are obligated to provide support. The term ‘child of the marriage‘ extends beyond the age of 19 in BC, to include cases where a child pursues higher education, and is therefore presumed to be dependent on parents.
While the continuation of parental support is often required, it is not an absolute obligation. Factors such as the child’s academic commitment, realistic career prospects and their financial contribution also weigh in.
The court also considers other factors such as the child’s age, degree type pursued, aptitude and success in the chosen course of study, and other financial possibilities like student loans.
Exceptions to the Rule
While the legal definition of a ‘child of the marriage‘ often requires parents to continue support beyond the age of majority, there are notable exceptions that can change this responsibility. For example, a court may not enforce support for an adult child engaged in post-secondary studies if the child demonstrates a lack of commitment to their studies, displays poor academic performance, or lacks realistic employment prospects related to their chosen field.
Even when the adult child is dedicated to achieving a higher degree and their selected course has valid employment opportunities, the court expects the child to contribute financially. Courts may impose limits on support if, for instance, the child is taking an unreasonably long time to complete their studies, which was the case in Farden v Farden, wherein the parties’ son was “proceeding with his further education at what [the judge considered] to be a leisurely pace.”
In determining whether child support should continue for an adult child, the court considers factors such as the child’s full-time or part-time study status, potential for student loans, age, pursuit of a first or second degree, academic ability, and educational plans the parents made while together. It’s also considered if the child unilaterally ended the relationship with the paying parent.
Timing of the Child Support Application
Beyond the considerations surrounding the continuation of child support for an adult child, parents should also be mindful of the significance of the application’s timing. The timing of the child support application plays an essential role in its success, particularly when it pertains to an adult child or a ‘child of the marriage,’ as defined under the Divorce Act.
A common misconception is that the obligation to pay child support concludes when the child attains the age of majority (19 in British Columbia). However, a parent’s duty often extends beyond this age if the child is unable to withdraw from parental care due to reasons such as illness, disability, or pursuing higher education.
Importantly, an application for a new support order or for retroactive support for a child over 19 cannot be initiated if the individual is no longer considered a ‘child of the marriage’. It is imperative that such an application commences while the child is still recognized as a ‘child of the marriage.’ Delaying could potentially result in a loss of the entitlement to claim for support.
How Does Intestate Succession Affect the Definition of a “Child of the Marriage” in BC Family Law?
Intestate succession and marriagelike relationships play a significant role in BC family law, particularly in defining a “child of the marriage.” When no will exists, the legal framework ensures equitable distribution of assets, often expanding the scope of who qualifies as a child, especially in situations involving marriagelike relationships and blended families.
Frequently Asked Questions
What Are the Legal Implications if a Child of the Marriage Refuses to Contribute Financially to Their Post-Secondary Education?
If a child refuses to contribute to their post-secondary education financially, courts may consider this during child support proceedings. The child’s willingness to share costs can impact the amount of support required from parents.
How Does the Court Decide if a Child of the Marriage Is Truly Unable to Withdraw From Their Parents’ Care?
The court evaluates various factors such as the child’s age, health, educational status, and personal circumstances to determine if they are truly unable to withdraw from their parents’ care for reasons beyond their control.
Are There Specific Cases Where the Court Would Not Require a Parent to Support an Adult Child’s Academic Pursuit?
Yes, courts may not require parental support for an adult child’s academic pursuit in cases where the child lacks realistic goals, shows poor academic performance, or is not fully committed to their studies.
What Happens if a Parent Refuses to Pay Child Support for a Child of the Marriage Who Is Over 19 and Pursuing Post-Secondary Education?
If a parent refuses to pay child support for a child over 19 pursuing post-secondary education, legal action can be taken. The court will evaluate the child’s dependency and the parent’s financial responsibility.
Can a Parent Stop Paying Child Support if a Child of the Marriage Decides to Take a Gap Year Before Continuing Their Studies?
Whether a parent can cease child support during a child’s gap year depends on several factors. These may include the child’s age, the purpose of the gap year, and the court’s interpretation of a child’s dependency.
Conclusion
To summarize, the concept of a ‘child of the marriage‘ in British Columbia is nuanced and extends beyond the age of majority. The obligation for child support for a child of the marriage may continue for a number of reasons, including supporting their post-secondary education.
Exceptions exist, and the court considers various factors when determining child support for an adult child. Timely initiation of a child support application is critical while the individual qualifies as a ‘child of the marriage.’
References
- Divorce Act, RSC 1985, c 3, s 2
https://canlii.ca/t/566hk ↩︎ - Farden v Farden, 1993 CanLII 2570 (BCSC)
https://canlii.ca/t/1dk6h ↩︎
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Madison Lussier
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Assisting clients through some of the most challenging times in their lives has shaped Madison’s empathetic, professional, and trauma-informed approach to advocacy. Although she now specializes exclusively in family law, her confidence in the courtroom is largely derived from her previous experience in criminal defence.
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