This was a motion by the respondent mother to retroactively terminate her child support obligations and receive credit or reimbursement for any overpayment of child support.
The parties had two adult children who had lived with the father since separation. After separation, the father brought a motion for interim child support and spousal support. This temporary order was granted by Justice MacPherson as the children were both under 18 and in school. The respondent brought a motion by arguing that her child support obligations ended when each of the children turned 18 years of age. The appellant sought to stay the motion on the ground that the respondent is in arrears of her support obligations. The respondent argued that there was a material change in circumstances since the original Interim Order. The first order was made when both children were under 18 and in school. At the time the mother served her motion both children were working and not enrolled in any academic studies. However it is relevant to note that twelve days after the mother served her notice of motion, both children enlisted in post-secondary programs
Section 2(1) of the Divorce Act defines a “child of the marriage as a child of two spouses who is under the age of majority and not withdrawn from their charge, or is the age of majority or “over and under their charge but unable, by reason of illness, disability, or other cause, to withdraw from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”. Menegaldo v Menegaldo held that the onus of establishing that an adult child is still a “child of the marriage” and entitled to support I son the party seeking the support. Meneglado also held that an adult child undertaking educational studies may constitute an “other cause” within the meaning of section 2(1) of the Divorce Act. Additionally, there are many cases in which courts have found that a child taking a “gap year” before starting post-secondary studies, or a brief hiatus from an educational program does not immediately preclude them from being a “child of the marriage”.
Justice MacPherson held in this case that adult children cannot choose to remain economically dependent on a parent. They must be unable to withdraw from the parent’s care, implying that adult children cannot simply take multiple gap years as they please to prolong support. Justice MacPherson permitted the children to take a gap year but stated that simply because virtual learning is not “ideal” does not warrant the continuation of child support. Instead he found that the respondent mother’s child support obligations had ceased since neither children have returned to full-time post-secondary studies. This order was made without prejudice to the applicant’s right to apply for child support again, when the school year begins if the two children do choose to attend school.
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