Hi, my name is Daphna Schwartz and I am a lawyer with the Feldstein Family Law Group. Today I’m going to talk to you about the legal definition of a child for the purposes of determining child support eligibility.
For separating spouses who are legally married, the Divorce Act tells us the definition of a child, specifically what is defined as the child of the marriage. A child of the marriage means a child of 2 spouses or former spouses, who is (a) under the age of majority, being 18 years of age, and still lives with or is under the control of the custodial spouse, or (b) is 18 years of age or over who has not become independent as result of illness, disability or other cause.
For parents who are not legally married, the Family Law Acttell us the definition of a child, being a dependent child under 16 years of age, or aged 16 or 17 who has not withdrawn from parental control, or over 18 years of age and attending a full time education program and not withdrawn from parental control.
The meaning of a child also includes a non-biological child to whom one or both spouses stand in the place of parents, for example a step-child.
With respect to a child under the age of 18, he or she can be considered not to be under the control of the custodial spouse or to have withdrawn from parental control if he or she is no longer in school and working full-time.
With respect to a child over the age of 18, the definition of other causes has broad meaning and the courts have defined other causes to include adult children in their 20s who are in a full time education program, such as university or college, whether residing with a parent or on their own. If residing with a parent, then the custodial parent would be entitled to the table amount of monthly child support from the non-custodial parent. An adult child is not residing with a parent while attending post-secondary school may not be entitled to a table amount of monthly child support, he or she may be entitled to the education costs from the parents.
An adult child who leaves full time education, but later returns to school, may reinstate his or her status as a child of marriage for purposes of child support entitlement.
With respect to illness or disability of an adult child that is unable to become independent, the custodial spouse would have the obligation to prove that as a result of the illness or disability the child is unable to become independent and therefore entitled to child support. Illness and disability may include developmental or behavioural disorders, such as Autism or Asperger’s Disorder that results in the adult child being unable to obtain the necessities of life without assistance.
If you would like to learn more about the definition of a child for child support purposes, you can visit our website at www.separation.ca. If you need legal advice about your own situation, please call us at 905-415-1636 for a consultation. Thanks for watching.