“Section 31(1) of the FLA provides that every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who
(a) is a minor;
(b) is enrolled in a full time programme of education; or,
(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents
The Family Law Act was amended by Bill 113 2017 “An Act to amend the Family Law in respect of support for adult children”, effective December 14, 2017. This amendment broadened the definition of a child entitled to support in the FLA to accord with the definition of “child of the marriage” in s. 2(1) of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.).
The previous version of s. 31 read:
Obligation of parent to support child
31(1) Every parent has an obligation to provide support for his or her child who is a minor or is enrolled in a full time programme of education, to the extent that the parent is capable of doing so.
31(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.
Counsel for the Respondent argued that cases decided prior to the amendment should be distinguished. These cases had developed a reading of s. 31(1) which allowed that a “full time programme of education” included part time programmes, as long as the child was diligently pursuing studies to the best of the child’s abilities. Counsel argued that the courts in these cases were “shoe-horning” children who should have been entitled to ongoing support on the basis of their disability into the category of children who were entitled on the basis of enrollment in a “full-time programme of education” because that was the only ground for ongoing entitlement for children over the age of majority recognized by the FLA at the time. As the FLA now provides for entitlement for a child who cannot withdraw due to illness or disability, counsel argued this line of cases should no longer apply.
Counsel for the Applicant submitted that the cases decided prior to the amendment remain good law and that the court must recognize that some children occupy a middle ground between being unable to withdraw from their parents’ charge by reason of illness or disability and being capable of enrollment in a full-time program of education.
In M.P.A.N. v. J.N., 2018 ONCJ 769, Finlayson J. considered the impact of the amendment to s. 31(1) of the FLA, and whether it changed the approach to be taken by the court to entitlement: “While the new section 31 broadens the bases of entitlement to child support, I note that the amendment did not abandon the old statutory language about enrollment in a full time program of education in the predecessor to section 31. Therefore, the case law decided under the previous section remains applicable in cases where dependency flows from an adult child’s continued educational path”: para. 69.
Other cases decided since the amendment, Teston v. Sooley, 2018 ONCJ 756 and Laramie v. Laramie, 2018 ONSC 4740, applied the case law decided prior to the amendment in determining what constitutes a full time programme of education to entitle a child over the age of 18 to ongoing support.
I am of the view that the cases decided prior to the amendment to the FLA are relevant to the facts of this case. S.H.’s dependency arises from her enrollment in post secondary education. She has physical and mental health challenges that affect her ability to take a full time course of study. In determining whether she is entitled to support on an interim basis, I find it is appropriate to look at the test in the cases regarding enrollment in a full time program of education prior to the amendment to the FLA, as well as those decided subsequently.”