“The definition of “child of the marriage”, under s. 2(1)(b) of the [Divorce] Act, includes a child who “… is the age of majority or over and under their [her parents’] charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.”
Victoria was 23½ years old at the time that this Application was commenced. Accordingly, the onus is on Heidi to establish that Victoria was under parents’ charge and unable to withdraw from their charge or to obtain the necessaries of life: Ethier v. Skrudland, 2011 SKCA 17, paras. 17-18.
Residency is usually associated with a child being under a parent’s charge. In Tapson v. Tapson, 1969 CanLII 541 (ON CA), [1970] 1 O.R. 521 (C.A.) Laskin, J.A., as he then was, stated that an adult child is under her parents’ charge if a parent has assumed the care and maintenance of the child in the parent’s premises. He stated, at paras. 5 and 6, that:
… I am prepared to read the phrase, ‘under their charge’ broadly as meaning simply that the parent has assumed the care and maintenance of the child in the parent’s premises.
… An order for maintenance or interim maintenance based on a child 16 years of age or over being in the charge of a parent assumes, of course, that the child is living with the parent in the parent’s care and to that extent, within the parent’s responsibility for maintenance. If it should prove to be the case that a child, having reached the age of 16, withdraws from a parental home and goes out to live by himself or by herself, other considerations will have intruded to make this provision probably no longer applicable.” [Emphasis added]
Economic dependence is the essential feature of whether a child is under a parent’s charge: See Hon. Justice David L. Corbett, Claudia Schmeing, 2011 30 CFLQ 165, Child Support for Estranged Adult Children — “Parent as Wallet” or “Can’t Buy Me Love”. Thus, a child that has left home because of conflict within the home nevertheless remains under his parents’ charge: Pound v. Pound [1987] B.C.J. No. 109 (C.A.).”