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Family and Divorce Law
At what point a child is not considered a child of a marriage for child support calculation?
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At what point a child is not considered a child of a marriage for child support calculation?
In British Columbia (and across Canada), a “child of the marriage” is entitled to child support as long as they are dependent — and this does not automatically end at age 18. The test for whether someone is a “child of the marriage” is legal, not just biological or age-based.
Legal Definition (Divorce Act, applicable across Canada)
A “child of the marriage” is defined as a child who:
- Is under the age of majority (under 19 in BC) and has not withdrawn from the charge of their parents, or
- Is 19 or older but unable to withdraw from parental charge due to illness, disability, or other cause (commonly, full-time post-secondary education).
When Is a Child Not Considered a Child of the Marriage?
A child stops being a “child of the marriage” when:
- They reach the age of majority (19 in BC) and
- Are no longer dependent (i.e., they can support themselves and have withdrawn from parental care and control).
This can occur when:
- The child leaves home and becomes financially independent.
- The child finishes post-secondary education and begins full-time employment.
- The child refuses contact with the parent, depending on the context (though this alone does not always end support).
- The child fails to pursue education seriously — some courts have terminated support for students showing little effort or progress.
Still a Child of the Marriage if:
- They’re in full-time university/college (typically up to one undergraduate degree).
- They have a medical or mental health condition that affects their independence.
- They’re in a transition period (e.g., summer between high school and college).
Case-by-Case Discretion
The court considers:
- Age and maturity of the child.
- School attendance and progress.
- Work and financial independence.
- Relationship with the parents.
- Any medical or psychological issues.
Summary
A child is not a “child of the marriage” when they are over 19 and no longer dependent on their parents. If the child is in post-secondary education or has a disability, they may still qualify for support past age 19.
In British Columbia, a child is typically entitled to child support until they reach the age of majority, which is 19 years old. However, support may continue beyond this age under certain circumstances, particularly if the child is unable to support themselves due to reasons such as illness, disability, or ongoing post-secondary education.
- Case Law Examples:
- Post-Secondary Education:
- Farden v. Farden (1993): This case established several factors to determine if a child over 19 is still entitled to support while pursuing post-secondary education. These factors include the child’s enrollment status, academic performance, career plans, ability to contribute to their own support, and the parents’ educational expectations for the child.
- W.P.N. v. B.J.N. (2005): The court emphasized that not all factors need to be present to establish entitlement to support during post-secondary education. The decision underscored the importance of considering the child’s educational pursuits and the parents’ financial capacity.
- Disability or Illness:
Bye v. Bye (2024): The British Columbia Court of Appeal ruled that child support does not automatically end at age 19, especially when the child has disabilities. The court highlighted that support may continue indefinitely if the adult child is unable to support themselves due to a disability.
- Financial Independence:
Johnson v. Obert (2024): The court concluded that child support obligations should end when the youngest child reaches 19 and is no longer in school, indicating that the child’s financial independence is a key factor in terminating support.
Summary:
Child support in British Columbia generally continues until the child turns 19. However, support may extend beyond this age if the child is pursuing reasonable educational goals, has a disability or illness preventing self-sufficiency, or is otherwise unable to achieve financial independence. Courts assess each situation individually, considering factors such as the child’s educational enrollment, health status, efforts toward self-support, and the financial circumstances of both parents.
The information presented is for informational and educational purposes only and may not be accurate. This information does not replace getting legal advice from a qualified, practicing lawyer. If you are facing a legal dilemma, you should make an appointment and consult with one of our licensed and practicing lawyers.
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