The decision in Diment v. Diment by Justice Midwinter of the Manitoba Court of Queen’s Bench deals with a motion by a father to terminate child support for an adult child, and a cross motion by a mother to vary the proportionate sharing of the child’s post secondary education and dental expenses.
The child attended a full-time nursing program until April, 2012. During the summer of 2012 (Between April and August), the child was employed, and earned approximately $6,400. She continued to reside with the mother during that time. The child resumed full time attendance at school in September, 2012.
The father moved for an order terminating his child support obligations for May – September, 2012, when the child was not attending school and was employed. He took the position that the child should use her earnings from the summer job to contribute to her expenses. The father agreed that the child resumed being a child of the marriage in September, 2012, but claimed that only Table support was payable commencing in September, 2012. Finally, the father sought an order terminating child support for the child commencing December, 2013, pursuant to a prior agreement between the parties. The mother took the position that the father should pay child support for summer, 2012, and that he should pay his proportionate share of the child’s section 7 expenses while the child was attending school in 2013.
The judge found that it was reasonable to expect the child to contribute some of her earnings toward her expenses, however, he noted the Manitoba Court of Appeal’s comments in Rebenchuk v. Rebernchuk, that
…. to reduce or eliminate parental support because the child took several breaks to work and save money, or opted for part-time studies, would penalize her efforts to achieve her goals with limited means.
In determining the appropriate level of child support for the adult child attending a program of education, the judge cited the framework set out by the Court of Appeal in Rebenchuk:
 Based on Rebenchuk, there are three steps to consider.
1. Does the person for whom support is sought a child of the marriage?
2. Is the table amount in the guidelines inappropriate? If not, then the guidelines should be awarded.
3. If the answer to step two is yes, what level of support is appropriate?
The judge found that steps 1 and 2 of the Rebenchuk inquiry were met. He noted that the child remained a child of the marriage, and that:
Once the daughter returns to full-time attendance at her program, and for the full term of 2012, there will be a requirement for support over and above the table amounts by virtue of tuition. Accordingly, I am of the view that the second step in the case of Rebenchuk has been met.
Moving on to step 3 of the inquiry, the judge made the following findings in determining the appropriate level of support:
- If the parents’ marriage remained intact they would have decided to support their daughter in her ultimate aim of receiving a practical nursing certificate;
- The degree to which the child is able to earn an income to contribute to her own education is not entirely clear, and there was no evidence that the child still had access to her previous employment;
- The child’s living expenses were reasonable since she was living at home with her mother and was being supported;
- The child’s career plans appeared reasonable;
- The child would likely benefit from her program of study, in that completion of same would hopefully result in a career and full-time employment
- It was unclear whether part-time employment was available to the child while she studied full-time; and
- It was unclear whether the child was eligible for student loans or other financial assistance.
On the basis of the findings above, the judge ordered the father to pay Table child support for the period between April and August, 2012. The father’s motion to terminate Table child support as of December 31, 2012 was granted, on consent, however, the father was ordered to contribute his proportionate share toward the child’s 2013 tuition expenses and any dental expenses as they arise.
The judge in Diment made a finding that the child continued to be a child of the marriage, notwithstanding that not attending a full-time program of education. His decision is consistent with section 1(1) of the Divorce Act, which defines a “child of the marriage” as a child who is “… (b) the age of majority or over … but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.”
It is noteworthy that child support for adult children of unmarried spouses is subject to the definition of “child of the marriage” in the various provincial family law statutes, and the definitions are not always consistent with the Divorce Act. For example, section 31 of Ontario’s Family Law Act provides that a parent is obligated to child support for a child over the age of majority only if that child “is enrolled in a full time course of education.”
Although provincial legislation in Ontario clearly treats children of unmarried spouses differently than children of married spouses, no steps have been taken to amend the legislation to date. Litigants with adult children should therefore be mindful of the legislation pursuant to which child support is being requested and/or ordered in their case.