“All children of separated parents are entitled to child support until they are no longer defined as a “child of the marriage.” Section 2(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) which applies to all cases in Canada where the parents were legally married and divorcing or have divorced, provides that a “child of the marriage” includes:
a child of two spouses or former spouses who, at the material time, […] (b) is the age of majority or over and under their charge but unable, by reason of illness, disability, or other cause, to withdraw from their charge or to obtain the necessities of life;
Section 15.1(1) of the Divorce Act, provides, in part:
A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.
It is possible from a plain reading of the Act to find that an adult who does not have a disability and is not enrolled in post-secondary is still a “child of the marriage” entitled to child support because they are unable to withdraw from their parents charge, or unable to obtain the necessities of life, by reason of an “other cause” (see Nkwazi v. Nkwazi, 2014 SKCA 61, 438 Sask. R. 185, at para. 23). In my view, there is a growing, but limited, precedent for the provision of child support in these types of circumstances. In order to determine this, the court must go through a two-stage analysis including:
(a) Is the adult child able to withdraw from their parents charge or obtain the necessities of life, i.e., the court must make a finding of whether the adult child can or cannot obtain an income to meet their reasonable needs; and
(b) Is the “cause” of the inability to withdraw permitted under the Divorce Act, i.e., is the cause of that inability a social/economic factor (such as the cost of living and delayed adulthood, or a difficult transition in their life).
The onus of proof would lie with the party seeking the provision of child support, who would have to prove that the child is/was unable to withdraw from parental control and is eligible for support. The nature and amount of evidence will vary with the case but becomes greater as the adult child grows older (see Titova v. Titov, 2012 ONCA 864, [2012 O.J. No. 5808, at para. 43).”
Brun v. Fernandez, 2023 ONSC 4787 (CanLII) at 8-10