Bye v Bye Overview
- Following the parties’ divorce, one party was required to pay child support to the other for an indefinite period for their two children, “B” and “C.”
- Each child, upon turning 19, continued to live with their mother. Both were designated as “persons with disabilities” as per the Employment and Assistance for Persons with Disabilities Act.
- Their father agued that the child support obligation was “spent” once they turned 19, regardless of their inability to live independently. Their mother argued that both remained “children of the marriage” due to their disabilities.
- The mother satisfied the onus of proving that both children remained children of the marriage.
- The father made an application to declare that the parties’ two children had ceased to be “children of the marriage” upon reaching the age of the marriage, which would then terminate his child support obligations.
- The application was dismissed, and this appeal responds to that dismissal.
Why This Decision is Important
A child support order is “spent” when the child is no longer a “child” for support purposes.1
According to the Divorce Act,2 a “child of the marriage” means a child of two spouses or former spouses who:
a) is under the age of majority and who has not withdrawn from their charge, or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.
This means that, even though you may have a child support obligation for a child that will soon reach the age of majority, that does not necessarily cancel the child support obligation.
The “child of the marriage” definition is intended to ensure that, in situations where one parent is responsible for the care of an adult disabled child, the other parent is obligated to provide support or assistance on an ongoing basis.
Case Details
Family law — Children — Maintenance — Adult children — Variation
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Outcome
There was some confusion in this case as to how much money “B” was receiving from the government. In deciding that the child support order was enduring, the judge found that the receipt of income was relevant to the amount of support paid, but not to “B’s” status as a child for support purposes.
Both children, due to their status as persons with disabilities, remained “children of the marriage.” As such, the child support order imposed on their father remained ongoing.
Key Takeaways
- Support orders in family law proceedings are very much up to the judge. If the evidence supports the judge’s findings, they are very unlikely to be overturned later.
- An indefinite order for child support does not automatically terminate when the child turns 19 (or the age of majority).
- When there is a difference of opinion as to the status of the child, the burden of proving that the child continues to need support falls on the parent who is receiving the support.
References
Bye v Bye, 2024 BCCA 264
https://canlii.ca/t/k5rf4
- Dring v Gheyle, 2018 BBCA 435
https://canlii.ca/t/hw5sn ↩︎ - Divorce Act, RSC 1985, c 3, (2nd Supp), s 2(1).
https://laws-lois.justice.gc.ca/eng/acts/D-3.4/page-1.html#h-172988 ↩︎
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Myron Plett
FAMILY LAWYER
Myron is a seasoned litigator with nearly twenty years of experience and a broad range of skills that has led to significant successes in the Provincial Court of British Columbia, the Supreme Court of British Columbia. He has also taken his clients to victory before tribunals such as the Residential Tenancy Branch and the BC Human Rights Tribunal.
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