FLA & Child Support Overpayment
The issue of child support is complex and multifaceted but this is all the more true when discussing the question of support for an adult child. Many parents are surprised to learn that their obligation to support their child or children does not necessarily cease when a child reaches adulthood.
The existing and emerging trends in case-law to order support for adult children are a reflection of societal changes. The reality is that more and more adult children are residing with their parents for longer periods of time. There is recognition that it has become increasingly difficult and expensive for adult children to withdraw from parental care. In certain circumstances, there can be lengthier obligations to support adult children in the context of separation and or divorce. Examples of this include but are not limited to adult children pursuing a post-secondary education and/or those children who are unable to withdraw from parental care by virtue of illness or disability.
Federal Legislation has extended its definition of a “child of the marriage” to include children who are over the age of majority but unable to withdraw from their parent(s) charge due to illness, disability, or other cause and, therefore, are unable to obtain the necessaries of life. i.
Provincial Legislation provides that parents are obligated to provide support for a child who is unmarried or enrolled in full time education, assuming that the child has not reached the age of sixteen (16) and withdrawn from parental control. ii
Notwithstanding the above, the mere fact that an adult child is registered in and attending post-secondary education is not, in and of itself, determinative of entitlement to parental support. All of the following will be taken into account by the law: entitlement, the child’s needs, the child’s obligation to contribute and the parental obligation to contribute. Quantum of support is also impacted by where the child is residing while attending school. Further, courts will also consider whether the child is enrolled in part-time or full-time education as this will have implications on whether the Provincial or Federal Legislation will be applied. Lastly, income earned by the child(ren) will be taken into account when apportioning the overall costs of the child’s education.
As previously mentioned, Federal Legislation requires parents to support adult children who are unable to obtain the necessaries of life due to illness or disability. It is important to note that support received in these circumstances, regardless of quantum, is not income attributable to the child(ren); however, disability payments received by adult child(ren) are taken into account when determining quantum of support payable by the payor parent.
The quantum of support payable for an adult child is determined in one of two ways: the table amount of support payable for minor children in accordance with the Child Support Guidelines, or, an amount that the court considers to be appropriate “having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent to contribute to the support of the child.”
Through case-law, courts have been able to establish and apply a test for determining under what circumstances an Order for child support for an adult child will be awarded. Namely, is the child entitled to support and, if so, is the table amount of support appropriate? If the table amount of support is not appropriate then the appropriate level of support must be determined.
It is important to consider the amount of time that the adult child is residing with each parent as this will have implications on the quantum of support each parent is responsible to contribute.
The law with respect to support for an adult child is both complicated and ever evolving. When determining entitlement, quantum and duration of support for adult children, there are numerous factors and differing legislation that should be considered. The subject is understandably fraught with misconceptions and parents with questions about their potential support obligations are best served by seeking legal advice from experienced family law counsel.
Divorce Act, R.S.C. 1985, c.3 (2nd Supp.), s.2(1).
Family Law Act, R.S.O. 1990, C. F.3, s.31.
This article is provided for general information purposes and should not be considered a legal opinion. Clients are advised to obtain legal advice on their specific situations.