“The Respondent further argues that the letters from Dr. Moss and Dr. Wong do not establish a “causal nexus” between S.H.’s health issues and her ability to be enrolled full time in university.
The onus is on the Applicant to establish that S.H. is still a “child of the marriage”: Szitas v. Szitas, 2012 ONSC 1548 at para. 28. Where the child is pursuing a course of education, the ultimate question is whether the child is “unable without the direct or indirect financial assistance of the parents to pursue a reasonable course of post-secondary education to the end of bettering the future prospects of the child”: Szitas at para. 37, citing Geran v. Geran, 2011 SKCA 55, 97 R.F.L. (6th) 68. The analysis of whether a child is unable to withdraw from parental charge involves a careful assessment of the child’s overall condition, means, needs and circumstances. An adult child who looks to their parents to continue to support them through their advanced studies cannot claim indefinite dependency while engaging in half-hearted or ill-conceived educational endeavours: Laramie¸ citing Kohan v. Kohan, 2016 ABCA 125, 77 R.F.L. (7th) 44.
When the child is attending school part-time because of a disability, “cogent evidence” about the nature and extent of the child’s disability or illness and the impact on the child’s ability to obtain the necessities of life on their own is required: Szitas at para. 39. Children may have physical or mental health conditions which affect their abilities to complete school and obtain employment and still be capable of becoming financially independent. In Szitas, although the child’s doctor had provided a letter stating that the child’s depression and anxiety “affected his ability to complete school and obtain employment”, Chappell J. found that there was insufficient evidence about how these conditions affected the child’s day-to-day functioning, whether he had attempted to secure full or part-time employment, whether he was entitled to government subsidies, and whether his conditions had improved since the writing of the letter.
Although compelling evidence is required to establish ongoing entitlement to support, and that evidence must show a causal nexus between the disability and the inability to withdraw from parental charge, I find that the nexus need not be explicitly presented by a medical expert, as the Respondent contends. The court may draw conclusions about the impact of the disability on the child from the totality of the evidence presented.
On an interim motion for support, there must be a prima facie case for entitlement: Maelbrancke v. Proctor, 2016 ONSC 1788 at para. 9, citing Lopez v. Lopez (1993), 1993 CanLII 16085 (ON SC), 48 R.F.L. (3d) 298 (Ont. C.J.), Butzelaar v. Butzelaar (1998), 1998 CanLII 13423 (SK QB), 174 Sask. R. 125 (Q.B.), and Land v. Aitchison, 2005 CarswellOnt 372 (Ont. S.C.J.). This is a relatively low threshold of proof.
I find that the Applicant has met this burden of proof and that S.H. is entitled to continue to receive child support on an interim basis. There is evidence that S.H. is enrolled part time at Y[…] University and attending within the academic accommodations granted to her. There is also evidence from S.H.’s doctors and from the Applicant that S.H. suffers mental and physical health challenges which limit her academic functioning. Her transcripts show that she has failed some courses but achieved passing grades as high as a B+ in others. I note also that this is S.H.’s first university degree, and she expects to complete the degree in a little over a year. The courts will generally allow ongoing support for a child who is diligently pursuing studies in a suitable program until the completion of at least the first college or university program: Laramie at para. 45, citing Marsh v. Jashewski, 2011 ONSC 3793, 5 R.F.L. (7th) 360 and Caterini v. Zaccaria, 2010 ONSC 6473, 97 R.F.L. (6th) 249.”