As discussed in a previous blog, part of the changes enacted in December 2018 under Alberta’s Family Statutes Amendment Act (the “FSAA”) involved expanding the ability to make claims for child support for adult dependent children to couples who were never married. Previously, this had only been available to married couples who were covered under the federal Divorce Act.
Prior to the change, child support claims for adult children of unmarried couples were limited to children who were under 22 years of age and enrolled as full-time students. This meant that common-law or other unmarried couples faced a major legislative gap when it came to claiming support for adult children who were unable to become independent due to mental or other disabilities, or who were enrolled as full-time students after the age of 21. This gap was eventually declared to be unconstitutional after it was successfully challenged by a mother in Calgary.
As a result of the changes, claims for support can be made for adult children of non-married couples for a variety of reasons beyond the age of 21, so long as they are unable to withdraw from their parent’s care. This can be due to illness, disability, full-time studies or other reasons.
Whether the parents were ever married or not, an adult child may qualify for ongoing support for a number of reasons. An adult child in need of support is defined as a child over the age of 18 who is unable to withdraw from their parent’s care due to disability, illness or because they are enrolled in full-time studies and achieving passing grades. There are additional circumstances that may qualify, but these are the most common and clearly defined.
In order to secure the right to support (and to enforce that support under the Maintenance Enforcement Program), a court must provide a specific order specifying that support is to continue beyond the age of 22. For a child enrolled in full-time studies, the order should specify that support is to continue for as long as the child is enrolled full-time in school.
While support can be extended beyond the age of 21 for those enrolled full-time in school, this does not mean that enrolling in school will guarantee a support order. A recent decision of the Alberta Court of Appeal refused to extend support for a 22-year-old child of a divorced couple, despite the fact that she was enrolled in school full-time. The mother had applied for a child support order from her former spouse in order to contribute to her daughter’s educational program, and the chambers judge dismissed the claim. On appeal, the ABCA affirmed the decision of the chambers judge.
While each case will be determined on its own merits, the distinguishing factors highlighted by the court, in this case, were as follows:
The mother argued on appeal that children of parents of means should not be obligated to pay for their own education via loans or other forms of financial assistance. While the Court agreed on that point, the chambers judge had made a determination that the daughter was no longer considered a child of the marriage, and deference was owed to that finding. There was no reviewable error for the Court to overturn in order to find that the daughter was, in fact, a child of the marriage.
Child support awards can be complex, particularly when dealing with adult children who may or may not continue to be financially dependent on their parents. While some cases are clear, such as a child with severe intellectual disabilities, others may not be quite so simple to determine. Anyone seeking to obtain a support award for an adult child should seek the advice of an experienced family law lawyer for guidance.
The team at Mincher Koeman is dedicated to helping guide you through your family law issues no matter how complex they may be. Our exclusive focus on family law helps our clients navigate the emotional and financial challenges a family law matter can present. If you have a family law issue that you need assistance with, please contact us online or phone at (403) 901-3000 to talk with one of our lawyers today.
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