Introduction
The court in Brun v. Fernandez considered the complex issue of when adult children become disentitled to child support. This case contained unique circumstances that delayed adulthood for the children, including education and significant arrears from the payor parent. As a result, the court determined the termination date to be beyond when the children turned 18 or graduated from school, thus requiring retroactive support from the payor parent.
Background
In this case, the parties had two children, who at the time of the proceeding, were independent adults no longer considered children of the marriage. The main issue of this case was when the children became completely independent and were no longer entitled to child support.
The Applicant father argued that the children became disentitled when they turned 18 or finished school. In comparison, the Respondent mother believed they were entitled to child support well after turning 18.
Analysis
The issues in this case all related to support for the parties’ children. More specifically, what the support termination date should be, what income should be used to calculate the support, and if any retroactive support should be awarded for Section 7 special expenses.
The first issue analyzed by the court was the child support termination date. All children of separated parents are entitled to support until they are no longer defined as a child of the marriage. A child of the marriage is typically an individual under the age of majority, or an individual over the age of majority still in their parents’ care for reasons such as illness or disability. This definition can also extend to children above the age of majority who are enrolled in post-secondary education.
Justice Jain applied a two-stage test first asking whether the adult child can withdraw from their parents’ charge or obtain the necessities of life. One child received his university degree in 2020, and the other graduated high school in 2017. The father argued that following these two events, the two children became disentitled to support.
In response, the mother argued that the children were still financially dependent on her after those events. For the child who graduated from university, he was still dependent on the Respondent until he obtained a full-time job in November of 2020. For the child who graduated high school, he was still financially dependent on the Respondent because he only worked part-time after being laid off during COVID.
Justice Jain described that in the past, courts have considered that in some instances, children have longer transition periods before they become financially independent.
Thus, the answer to the first step was no, the children were not able to withdraw from their parents’ charge.
The second stage asks that if the answer is no, is the cause of the inability permitted under the Divorce Act. In this case, Justice Jain labelled the longer transition period as being an “other cause”. Justice Jain found the cause to be a mix of other factors that delayed adulthood including education, economic conditions of unemployment or unstable employment, increased cost of living and the COVID-19 pandemic. Likewise, the Applicant fell into significant arrears during the years he was meant to be paying support, meaning the Respondent and the children lost out for a very long time. As such, Justice Jain determined the termination date for child support of both children to be November 30, 2020, later than the Applicant argued.
The next issue was to determine what the Applicant’s income would be for support purposes, and if any retroactive support was required. Justice Jain recognized that the Applicant had struggled since the parties’ separation, but this was not grounds to demand the children no longer be considered children of the marriage as soon as they turned 18 or finished school.
In a previous Order, the parties agreed to impute income to the Applicant based on the minimum wage at the time. In reality, the Applicant earned about $5000 more than that imputed income. The Applicant never adjusted his child support per the higher amount, and thus Justice Jain decided to do so retroactively, including for arrears and missed support until November 30, 2020.
The court was more understanding of the Applicant’s modest income and position when it came to Section 7 expenses. The court did not require the Applicant to pay for certain expenses he was not consulted of, such as vacations or a child’s attendance to an unaccredited post-secondary school. However, the court did require payment for reasonable expenses such as medical and dental.
Conclusion
In conclusion, the court determined the child support termination date to be November 30, 2020. Based on this date, the court ordered retroactive child support for any missed payments up to that date, totaling over $20,000.