As a general proposition, a parent who is the biological parent of a child has an obligation to support that child while the child is under legal age, which in British Columbia, is under the age of 19. This is the obligation of both parents under both the Divorce Act and the Family Law Act. This applies whether or not the parties are married or unmarried.
Under the Divorce Act, a step-parent who is found to have a significant relationship with a child living with them who is not their biological child can have the same obligation to support that child as if they were their biological child subject only to another parents obligation to support the child.
Under the Family Law Act, a step-parent has an obligation to pay support for a child whether or not they are their biological child where they have married the child’s primary caretaker or resided in an unmarried relationship with the child’s primary caretaker for a period of one years (i.e. resided with the child) and have contributed to the financial support of the child during this time and the application for support is made within one years of the two parents ceasing to live together. However in step-parent situations under the Family Law Act this obligation depends on the child’s standard of living during the period of co-habitation and how long the child lived with the step-parent.
The obligation to support a child under the age of 19 under the Divorce Act of Canada can be terminated upon the determination that the child has removed themselves from the charge of the parents. The person who is seeking to determine that the child is no longer a child of the marriage under the Divorce Act must prove this to the court’s satisfaction prior to the child being over legal age. The concept of who is under a parents charge involves a consideration of whether or not the child is living independently and making their own decisions with respect to their life. The central determination, however, is often whether they can financially support themselves. Another key consideration is whether or not they are maintaining a relationship with either or both parents. It is important to note, however, that under the Family Law Act the obligation of a parent to pay support for a child appears not to terminate until the child is 19 years of age. The entitlement to support under the Family Law Act and the Divorce Act are quite separate and it is therefore arguable that termination of the obligation of the Divorce Act does not eliminate an obligation under the Family Law Act.
Obligation to Support a Child over the Age of 19 or the Legal Age
The Divorce Act and the Family Law Act create essentially the same obligation for children of the marriage that are over the age of 19 being the legal age in British Columbia. This is that the support will terminate unless the person who alleges that the child is still a child a marriage can prove the child is unable to remove themselves from the charge of their parents due to a physical or mental disability or some other cause and cannot otherwise provide themselves with the necessaries of life. In this respect, this is always a question of what the circumstances are in your particular case.
The first determination is whether or not they have removed themselves from the charge of their parents in this respect the court will assess a number of factors, which primarily include, but are not limited to, the following:
a) whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies;
b) whether or not the child has applied for or is eligible for student loans or other financial assistance;
c) the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;
d) the ability of the child to contribute to his own support through part-time employment;
e) the age of the child;
f) the child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;
g) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation; and
h) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from who support is sought.
It should be noted that the court will consider the ability of the child to support themselves. As such, even if the child has not removed themselves from the charge of the parties, the support obligation of the parent who does not have primary residence can still be determined to be quite minimal. In fact, with adult children the court is not considered bound by the basic guideline amount although this is a starting point.
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Dubas and Company
email: jdubas@divorcebc.net
605 – 938 Howe Street
Vancouver, BC V6Z 1N9
Tel: 604.697.9107
Fax: 604.697.9108
*20-minute consultations must be in-person at our law offices, if at all possible.