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BACKGROUND
C. Z. (the mother) and J. Y. (the father) have been involved in litigation since 2013 over child and spousal support. The parties have two adult children CZ and DZ. The father is estranged from both children. Despite prior court orders, the mother has repeatedly failed to provide timely and accurate disclosure regarding the children’s medical and educational statuses.
The father brought a second Motion to Change in 2023, seeking to terminate child support for DZ, who was over 18 and not attending post-secondary education full time. The father also sought stricter conditions for releasing RESP funds to both children, proposing that they be contingent on a certain level of academic success. The mother opposed these requests and sought increased child support and changes to section 7 expenses.
The issues are outlined as follows:
- Is DZ still a “child of the marriage” under the Divorce Act, regardless of if they are not attending school fulltime?
- Clarification of payment regarding each child’s post-secondary expenses
- Is the test for a material change in circumstance met so that the adult children need not seek the father’s consent when medical and related expenses are incurred?
THE LAW
According to section 2(1) of the Divorce Act, a child of the marriage means a child of two spouses, or former spouses, who at the material time is (a) under the age of majority and who has not withdrawn from their charge, or (b) is over the age of majority but unable, by reason of illness, disability, or other cause, to withdraw from their charge or to obtain the necessities of life.
The two-stage test to determine qualification for child support requires the judge to answer the following questions:
- Is the adult child able to withdraw from their parents charge or obtain the necessities of life?
- Is the cause of the inability to withdraw permitted under the Divorce Act, i.e. is there a social/economic factor?
The court in Szitas v Szita, 2012 ONSC 1548 reaffirmed that adult children may be classified as children of the marriage based on illness or disability. However, a finding of ongoing entitlement in these circumstances requires evidence from the spouse requesting ongoing support about the nature and extent of the child’s disability/illness, and the extent to which the disability/illness is impacting the child’s ability to be independent.
ANALYSIS
DZ’s Status
The court found that DZ suffers from serious mental health challenges, including Major Depressive Disorder, ADHD, anxiety, and autism. Expert testimony confirmed that DZ’s cognitive functioning is extremely impaired and therefore cannot support themselves independently. DZ is classified as a child of the marriage, regardless of not being enrolled in post-secondary education.
Post-Secondary Expenses
The court rejected the father’s proposal to condition RESP funding on academic success. The court ordered that $5,000 per term be released from the RESP for CZ, with additional contributions determined based on financial need, academic progress and available funding (i.e. OSAP, bursaries).
Material Change in Circumstance Test & Consent to Medical Expense Funding
The court found that the children’s age and maturity constituted a material change in circumstances. The court held that since they are over 18, it is no longer appropriate to requite parental consent for routine medical decision. Enabling this would allow the father an unreasonable level of power and control over the children.
The father was ordered to pay 68% of eligible medical expenses, including prescription medication, therapy, dental care, and travel for medical appointments, provided that proper documentation is submitted.