A recent Ontario Superior Court of Justice decision serves as a reminder to lawyers that there are no hard and fast rules laying out when support for a child should end.
A recent Ontario Superior Court of Justice decision serves as a reminder to lawyers that there are no hard and fast rules laying out when support for a child should end.
Vidal v. Dunn examines the situation of a 20-year-old offspring of divorced parents, the second of their two children, and the extent to which the father, who had been providing support, should continue to help the child under the separation agreement or legislation. In Vidal, the child’s circumstances were complicated by breaks from her education, changing her residence from one parent to another, suggestions of mental health issues and a criminal charge.
The court ultimately found in favour of the father that there was no support arears owing under the contract.
“In a great number of cases nowadays, it’s not as clear-cut as I think this case demonstrates,” says Ron Shulman, founder of Shulman Law Firm PC in Toronto.
The child’s 18th birthday doesn’t necessarily mark the exact time when they are meant to suddenly become financially independent from their parents, he says. Typically, parents continue to support their adult children through post-secondary education, which may include the odd gap year, says Shulman.
In family law, says Steven Benmor of Benmor Family Law Group in Toronto, a child ceases to be a child when they are no longer economic dependents. Typically, that includes those still enrolled in post-secondary education. But it depends upon the individual situation and, Benmor says, the law is continuing to develop, particularly in the area of mental health.
“It’s a discretionary call by the judge,” he says.
When a child has a disability, they can be a dependent forever, says Benmor. That means that, when a couple separates, the support for a child with disabilities continues.
“We’re at that point right now where family law is looking closely at mental health and wondering what to do with it,” he says.
“The question then becomes is the law going to stretch it even more for lower levels of mental illness? And that’s what’s going on in this case.” But Benmor sees this as an evolution and he suspects that courts will accommodate higher-functioning young adults, particularly if there is medical evidence supporting that.
“As soon as the doctor starts using the language mentally disabled, which is the language in the legislation for family law for support, now that disability is no longer just a physical disability — it’s [a] mental disability,” he says.
The obligations have been changing from one generation to the next, and they may not be consistent from one family to another, depending on their own unique circumstances, says Nathalie Boutet, whose Toronto firm, Boutet Family Law, centres around negotiation and mediation.
“This generation is very different in the sense that the parental involvement in the children lasts longer” and more children seem to have difficulty and don’t always follow that straight path from high school to university and then into a job, says Boutet. “It poses a lot of problems for parents because they may come with different values.
“Parents have different views sometimes on when they should stop paying for their kids.”
Boutet says she has found that courts allow some latitude for grown children who may have interruptions in their education, as long as the child keeps trying at school with an eye to finishing.
That child, too, she adds, needs to be prepared to demonstrate they are trying by providing proof, such as school records.
“The same principles have been applying for a very long time that the children have to provide information,” such as showing school records and registration, says Boutet. “They have to be involved in presenting the case.”
Overall, she says, exactly when support for a child ceases requires a case-by-case analysis. But, adds Boutet, there is also a trend that the court will look at the child’s makeup to figure out why the child is not following a straight or regular path and that includes looking at possible intellectual challenges. And there is usually latitude in terms of continuing the support when a child shows that they are trying to find their way.
In Vidal, the situation involved divorced parents, which likely was the reason it was heard by a court, says Benmor, who believes that had the parents still been together, it would have ended up being a heated family argument instead.
“They took this fight, because of divorce, in front of the divorce judge and the divorce judge sided with the father. The next divorce judge is going to side with the mother,” he says.
