“There are many cases in which courts have found that a child taking a “gap year” before starting post-secondary studies, or a brief hiatus from an educational program, may nonetheless remain a “child of the marriage”: see, for example: Boomhour v. Huskinson, 2008 CanLII 26261 (ON SC), at para. 46; Erb v. Erb, 2003 CanLII 2112 (ON SC), at para. 54; Leonard v. Leonard, 2019 ONSC 4848, at para. 55; Musgrave v. Musgrave, 2013 ONSC 7481, at paras. 38-39.
Other cases have held that a child may require a “modest transition period” after completion of an educational program to search for employment: S.P. v. R.P., 2011 ONCA 336, at para. 32.
Apart from these brief periods, however, and in the absence of “illness or other disability”, courts generally require attendance at school for an adult child to maintain his or her dependant status. Adult children cannot simply choose to remain economically dependant on a parent, they must be “unable” to withdraw from the parent’s charge. Nor can adult children accumulate multiple gap years to forestall their independence.
A parent paying child support for an adult child enrolled in an educational program “is entitled to receive confirmation from the educational institution attended by each child indicating whether that child is enrolled and is attending and whether he is attending on a part or full-time basis and the hours of attendance”: Lampron v. Lampron, 2006 CanLII 16375 (ON SC), at para. 4; Gill v. Gill, 2020 ONSC 1176, at para. 82; Musgrave, at para. 40. The record before me indicates that, notwithstanding frequent requests by the respondent, this information and documentation was not forthcoming from the applicant until after this motion was brought.
The loss of dependent status is not necessarily permanent. Once lost, dependant status may be regained. In Lawless v. Asaro, 2003 CanLII 2164 (ON SC), at para. 12, Fragomeni J. stated:
An adult child who has ceased to be a child of the marriage may regain that status by reason of the pursuit of further education. However, each fact situation must be analyzed carefully and the timelines between the time that the child has ceased to be a child of the marriage and the time when the request is being made to regain the lost status must be considered fully.
See also: Bishop v. McKinney, 2015 ONSC 5565, in which the father’s obligation to pay child support was suspended following the daughter’s graduation from high school, but resumed following her enrollment at university a year and a half later.
Where children have taken a gap year to earn money for post-secondary education, these earning may be taken into consideration when determining a parent’s support obligations, and the adult child may be expected to contribute some of their own income made during the gap year to the costs of post-secondary education: Menegaldo, at para. 174, Leonard, at para. 60; Lewi v. Lewi, 2006 CanLII 15446 (ON CA), at paras. 47 and 141.
In the present case, I am satisfied that both children should be permitted to take a “gap year” in order to “figure out” what they want to do. Both children graduated from high school when they were 17 years of age, and turned 18 the following autumn. It is not unusual for minor children to take a “gap year” before they are ready to attend post-secondary education, and they do not necessarily lose their dependant status as soon as they turn 18 years of age.
An adult child cannot, however, indefinitely postpone the commencement of post-secondary education and expect to remain a dependant, entitled to parental financial support. In the absence of “illness or disability” or some other cause that makes him “unable” to attend school, he no longer qualifies as a “child of the marriage” within the meaning of s. 2(1) of the Divorce Act.
While virtual learning may not be ideal, Matthew’s and Aaron’s decision not to enroll in any educational program for the 2020-2021 academic year was their choice. It was a choice that, as adults, they had every right to make, but it is not a choice that the respondent should be required to pay for.”