“Since Darryn turned eighteen years of age on June 16, 2011, it is necessary to consider the law respecting entitlement to support for children of the relationship who have acquired adult status. The onus is on the party seeking support for an adult child to demonstrate entitlement to support (Rebenchuk v. Rebenchuk, 2007 MBCA 22 (CanLII); 2007 CarswellMan 59 (C.A.); Olson v. Olson, 2003 ABCA 56 (C.A.) (CanLII); MacLennan v. MacLennan, 2003 NACA 9 9 (C.A.) (CanLII); Whitton v. Whitton (1989), 21 R.F.L. (3d) 261 (Ont. C.A.)). Where the claim for ongoing support under the Family Law Act is based on the child’s enrolment in a full time program of education, the party seeking support must provide tangible evidence of the child’s enrolment and attendance in the program, and has the onus of satisfying the court that the child’s level of participation in the program meets the requirements of section 31(1) of the Act (Vohra v. Vohra, 2009 ONCJ 135 (CanLII), [2009] O.J. No. 1446 (Ont. C.J.)). Enrolment in a full time program of education requires more from the child than simply being registered in a full time program (Figueiredo v. Figueiredo (1991), 1991 CanLII 4204 (ON SC), 33 R.F.L. (3d) 72 (Ont. Gen. Div.)). Furthermore, the policy of the applicable educational institution as to what constitutes enrolment in a full time program is not determinative of whether the child’s involvement in the program meets the requirements of section 31(1) of the Act (Cava v. Cava, 2005 CanLII 19815, 139 A.C.W.S. (3d) 904, [2005] O.J. No. 2316, [2005] O.T.C. 430, 2005 CarswellOnt 2287 (S.C.J.)).
The word “enrolled” refers to the child’s participation in the program. In order to remain eligible for support, the child’s participation in the program must be meaningful from both a quantitative and qualitative standpoint, and must be “consistent with the program’s purposes and objectives” (Giess v. Upper, 1996 CanLII 8102 (ON SC), 1996] O.J. No. 5600 (Gen. Div.)) From a quantitative standpoint, while a child need not have stellar attendance in programming in order to meet the test, there must be a reasonable degree of attendance taking into consideration the child’s particular needs and challenges. From a qualitative perspective, the child must demonstrate a reasonable degree of involvement, engagement and success in the program taking into account their overall level of functioning. The determination of whether a child’s participation in an educational program in question is sufficiently meaningful to secure ongoing entitlement to support must take into consideration the particular circumstances of the child. A standard of perfection in terms of attendance and success in the program is not required. The wording of section 31(1) must be construed flexibly and for the benefit of children, so as to ensure that children enrolled in an educational program have “easy access to the fruits of this section” (Copeland v. Copeland, [1992] O.J. No. 2677 (O.C.J.); Wilson v. Wilson, 2002 CanLII 2824, 117 A.C.W.S. (3d) 945, [2002] O.J. No. 4308, [2002] O.T.C. 885, 2002 CarswellOnt 3838 (S.C.J.)). Accordingly, a child may remain entitled to support on the basis of enrolment in an educational program even if their participation and achievement levels are problematic, provided that the effort which the child is putting forth is within their capability given their particular circumstances. (Copeland v. Copeland, Supra; Vohra v. Vohra, Supra.; Sullivan v. Sullivan (1999), 126 O.A.C. 292, 50 R.F.L. (4th) 326, [1999] O.J. No. 3973, 1999 CarswellOnt 3340 (Div. Ct.); Styles v. Styles, 2011 CarswellOnt 1134 (S.C.J.); Vivian v. Courtney (November 17, 2010), Doc. D3067/93 (Ont. S.C.J.); Gillesse v. Earl, 2011 CarswellOnt 826 (S.C.J.)).”