A REVIEW OF ADULT CHILD SUPPORT IN SASKATCHEWAN

The purpose of this paper is to provide an overview of the case law in Saskatchewan

regarding child support for children who are over the age of 18.

A. THE LEGISLATION

Any discussion of the issue of child maintenance for adult children must start with a review of

the appropriate legislation.

For married and formerly married parents, section 15 of the Divorce Act provides:

Child Support Order

IS. 1 (1) 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.

Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1).

Guidelines apply

(3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines.

Terms and conditions

(4) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just.

Court may take agreement, etc., into account

(5) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied

(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and

(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.

Reasons

(6) Where the court awards, pursuant to subsection (5), an amount that is different from the amount that would be determined in accordance with the applicable guidelines, the court shaH record its reasons for having done so.

Consent orders

(7) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.

Reasonable arrangements

(8) For the purposes of subsection (7), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines.

1997, c. 1, s. 2.

Section 2 of the Divorce Act defines what a child of the marriage is. Section 2 provides:

"child of the marriage" means a child of two spouses or former spouses who, at the material time,

(a) is under the age of majority and who has not withdrawn from their charge, or

(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 necessaries of life;

For both unmarried and married, or formerly married parents, section 4 of The Family

Maintenance Act, which is provincial legislation, provides for the support of adult children.

Section 4 of that Act provides:

4(1) In this section, "parent" means, with respect to a person described in subsection (2):

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(a) the father or mother of the person, whether the person was born within or outside marriage; or (b) the father or mother of the person by adoption.

(2) On the application of a parent of a person who is 18 years of age or older, the court may order the person's other parent to pay maintenance to the claimant for the benefit of the person if the person is:

(a) under the claimant's charge; and (b) unable, by reason of illness, disability, pursuit of reasonable education or other cause, to:

(i) withdraw from the claimant's charge; or (ii) obtain the necessaries of life.

(3) Every parent has an obligation to provide maintenance for a person described in subsection (2) in accordance with the guidelines or, if the court considers that amount to be inappropriate, in an amount the court considers appropriate, having regard to the needs, means and economic circumstances of the person described in subsection (2) and the ability of each parent to contribute to the maintenance of that person.

Section 3(2) of the Federal Child Support Guidelines, which are incorporated as regulations to

The Family Maintenance Act, provides the direction for determining the quantum of support:

3(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is:

(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

In cases where the income exceeds $150,000, section 4 provides further guidance. These

provisions provide as follows:

4. Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is

(a) the amount determined under section 3; or

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(b) if the court considers that amount to be inappropriate,

(i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;

(ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and

(iii) the amount, if any, determined under section 7.

Section 5 may also apply in cases where the payor parent has stood in loco parentis. Section 5

provides:

5. Where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is, in respect of that spouse, such amount as the court considers appropriate, having regard to these Guidelines and any other parent's legal duty to support the child.

Unlike the Divorce Act, the provincial legislation does not require a person who stood in loco

parentis to a child to pay child maintenance to that child once he or she reaches the age of 18.

This was confirmed by the recent case of Kretcher v. Baran 2010 SKQB 63 wherein although

the loco parentis relationship continued, the Court found that the provisions of The Family

Maintenance Act did not provide for the continuation of support of children over the age of 18 in

the case of a person standing in loco parentis.

B. ENTITLEMENT

In order for an adult child to remain a "child of the marriage" under the Divorce Act, the child

must be unable to withdraw from his or her parent's charge or to obtain the necessaries of life by

reason of illness, disability or other cause. The standard is much the same pursuant to The

Family Maintenance Act other than The Family Maintenance Act specifically refers to "pursuit

of a reasonable education" as a reason for a child to be unable to withdraw from his or her

parent's charge.

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An existing child maintenance order for a child who has now become the age of majority does

not automatically expire upon the child becoming the age of majority because the entitlement to

child maintenance is not based on age but is based upon dependency. Accordingly, the child

maintenance order continues until one of the parties (usually the payor) brings an application for

variation of the order and establishes a material change in circumstances: Smith v. Smith 2008

SKCA 14.

i) Onus of Proof

The onus to prove that an adult child remains unable to withdraw from his or her parent's charge

or obtain the necessities of life by reason of illness, disability or other cause, falls upon the

parent asserting it.

In addition, the parent seeking SUppOlt for an adult child has the onus of demonstrating to the

Court what the appropriate amount of child maintenance should be.

Proof that an adult child remains unable to withdraw from the charge of his parents requires the

recipient parent to provide the Court with evidence, firstly, as to the specific nature and

consequences of the illness, disability or other cause of the adult child's failure to withdraw from

parental charge or to obtain the necessities of life and, secondly, how the nature and

consequences of such illness, disability or other cause bear upon the adult child's ability (or

inability) to withdraw from parental charge or to obtain the necessities of life. It is not sufficient

for a parent to simply state that the child has not withdrawn or cannot withdraw from parental

charge or obtain the necessities of life or that a parent pays the child's expenses.

In Priddell v. Davis 2011 SKQB 52, the Court refused to order child maintenance for an adult

child who was attending a six-month police college course. The only evidence before the Court

that the child was attending the course, her biological father's worker's compensation paid for

her tuition and books and that she had a $6,200 student loan. The court found that the evidence

was insufficient for the Court to determine that she remained entitled to support.

b) Disability or Illness

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With respect to illness or disability, the recipient parent must provide the Court with evidence of

the specific nature and consequences of the illness or disability and how the nature and

consequences of that illness or disability impede the adult child's ability to withdraw from

parental charge or obtain the necessities of life.

In Nolte v. Nolte 2001 SKQB 268, the Court found that a 22-year old adult child remained a

child entitled to support when she was residing with her mother. The evidence demonstrated

that she was unemployable and was in receipt of $195.00 per month from Social Assistance. In

that case, the mother was covering the costs of room and board for the child. The Court noted

that it was unable to tell the father when his obligation to support the adult child would end but

indicated that circumstances might change in the future such that the support obligation might

cease. One of the circumstances listed was the possibility that the adult child's best interests

would be best met in a group home.

In Hanson v. Hanson 2003 SKQB 347, an adult child suffering from Down's syndrome was

determined to be able to withdraw from the charge of her parents despite the fact that she

remained dependent upon her mother for some assistance with living. The child in that case

initially resided in Saskatoon in an apartment. She received some help with day-to-day living

expenses from her parents. When the mother relocated to British Columbia, she alleged that the

child was not doing well and the child was moved to Victoria, B.C. The child received Social

Assistance from the government which covered her rent and some of her living expenses. There

was no evidence that the child was unable to care for her apartment, do her own cleaning or take

the transit. The child was employed part time for 12 hours per week. The mother alleged that

she had to assist the child with many of the tasks of daily living and that the child was not

capable of being independent. The child's costs exceeded her income. The Comt found that

day-to-day assistance is not sufficient to constitute being under the charge of one's parents.

In Riddle v. Blackburn 2003 SKQB 21, a 38 year old child suffered from cerebral palsy and

required constant ongoing supervision and attention provided by the mother. The child was in

receipt of social assistance. The mother's health issues required her to hire a part-time caregiver

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to help with the child. The Court found that the adult child was no longer entitled to support

because the social assistance he was receiving was meant to cover the necessities of life.

In Labrecque v. Labrecque 2011 SKQB 260, an adult child who suffered from sensory

integration disorder, who refused to go through the process to obtain social assistance, even

though he was qualified to receive it, and was capable of becoming independent if he received

appropriate treatment, nevertheless obtained an order for child maintenance. In that case,

however, the parties had agreed that the child remained a child entitled to support. Query: had

the parties not agreed that the child remained entitled to support, would the court have ordered

the same? In Nolte, supra, the Court noted an obligation on the part of the recipient parent to aid

the disabled child in becoming self-sufficient. In the Labrecque case, it did not appear that the

mother took many steps to do so until after the litigation had commenced.

It appears from the case law that adult children who are disabled and residing in group homes or

on their own and who are in receipt of social assistance will likely no longer be found to be

entitled to support.

c) "Other Cause"

The mere fact that a child lacks the ability to withdraw from parental· charge to obtain the

necessities of life is not sufficient to ground an order for adult child maintenance.

Voluntary support of adult children once they are done school is not sufficient to ground an

order for child maintenance: Deroo v. Szucsko 2009 CarswellOnt 7291.

In Foss v. Findlay 2008 SKQB 291, the court found that an adult child who was in receipt of

social assistance and family allowance and who was the mother of two children was not entitled

to child maintenance. The Court found that the child had moved home with her mother to share

expenses.

In Ethier v. Skrudland 2011 SKCA 17, the Court refused to order child maintenance for an adult

child who did not have any plans to further his education but intended to play football in

Kamloops. At the time of the order, the child was working part -time at a fast food restaurant.

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The mother deposed she was covering all of the adult child's expenses. The Court stated that

"divorced parents are not required to financially support a child who embarks on athletic

endeavors, regardless of the child's talent. The Divorce Act is not a social welfare program or

employment insurance program for the children of divorced parents."

The most common "other cause" seen in the Courts are children who are pursuing additional

education.

With respect to children who are over the age of 18 and completing or upgrading their grade 12,

the Court has shown a reluctance to terminate support for these children or to apply the ordinary

factors required for children who are attending post-secondary education such as university or

trade school. In Hodgkinson v. Hodgkinson 2008 SKQB 449, the Court stated that when an

adult child is trying to complete his high school education, different and flexible considerations

apply than when a child is attending a post secondary institution and that a Court will not invoke

the rigorous analysis usually used for determining entitlement to child support once a child

becomes an adult. The Court, in making this distinction, noted that any young person who does

not complete high school is virtually condemned to the financial margins. The Court did place

conditions that the adult child was required to comply with in order to receive support.

In Lamontagne v. Lamontagne, DIV No. 305 of 2003, Judicial Centre of Saskatoon, December

15, 20lO, unreported, the court ordered ongoing child maintenance for a child who was

completing high school upgrading. The child was earning some income and was, in addition,

only attending school for approximately three hours per day. Despite this, the Court found that

the child remained entitled to support but used the flexibility in the child's schedule to justify

providing a somewhat lower amount of support than required by the Tables.

In Boyachuk v. Fleming 2011 SKCA 11, the Court fund that an adult child upgrading her grade

12 so that she could get into nursing school remained entitled to support.

With respect to post secondary education, it is generally accepted by the Court that post

secondary education may be an "other cause" which may prevent children from being able to

withdraw from their parents' charge and obtain the necessities of life.

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The Court has generally been fairly flexible in its interpretation of what education worthy of

continued financial support. The burden does not appear to be particularly high based on the

case law. In H. (D.M.) v. M(G.M.) 20ll SKQB 104, the child attended a French Exchange

program in France. The Court found that the program had an educational component and as a

result, (in consideration with the other factors to be considered in determining whether the child

remains entitled to support) ordered that the costs of the same be shared between the parents.

With respect to adult children who are attending post-secondary education, the Court will review

a number of factors in determining whether or not an adult child remains a child such that

support may be payable. Based on the case law, the Court appears to take a holistic view of the

factors and must weight all of the factors in coming to a determination. A strong argument in

one area may be outweighed by an opposing argument in another area. The majority of these

considerations, when reviewed in the context of the case law, do not appear to go to entitlement,

but appear to primarily direct themselves towards the quantum of support to be ordered.

In particular, the Courts will consider the following factors:

I. The age, existing qualifications and experience of the child bearing in mind that what is of concern is a reasonable plan of post-secondary education to better secure the future prospects of the child; A child who is attending university with no career plan in mind may not be entitled to support.

2. The aptitude and ability of the child, along with the child's level of maturity and commitment, including his or her sense of responsibility and prudence; The fact that a child is not doing well in school is generally not sufficient, in and of itself, to disentitle the child to ongoing child maintenance. In Nygren v. Johnson 20ll Sask QB 12, the adult child was attending an educational assistant program. She did poorly in the program, passing only one of her classes in the second term. She provided no explanation for her poor performance and did not deny the father's allegations that she was not attending classes regularly. Although the Court admonished the child for her behavior, child maintenance was ultimately granted. The Court dealt with the issue of her poor performance in determining the quantum of child maintenance payable.

3. The nature and quality of the child's post-secondary education and career plan, including the duration of the period of study, the prospects of success, the potential benefit and the associated cost; Simply because a child's career plan is reasonable and the nature and her prospects of success good does not mean that the child will continue to receive support. In Guhl v. Guhl 2008 SKQB 520, the adult child was attempting to complete

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her Master's degree in History. The Court found that the degree would help her obtain employment and that her career plan was reasonable but nevertheless declined to order support based on the parents' means and the fact that the parents, given their means, likely would not have promised to finance a Masters education for their child. The Court, in this case, went so far as to suggest that there is a rebuttable presumption that an adult child pursuing a Master's Degree is no longer a child entitled to support.

4. The extent, ability and willingness of the child to meet the associated cost, whether through educational savings plans, savings in general, student loans, scholarships, bursaries and grants, employment or otherwise; The case law is clear that adult children are expected to contribute towards the costs of their education: Beutler v. Beutler 2005 SKQB 393 whether by way of student loan, employment income or otherwise. The growing trend in case law suggests that children will be required to contribute between 1I3 to Y:z of their educational costs: Bauer v. Noonan 2005 SKQB 427; Boyachuk v. Fleming 2011 SKCA II. That being said, the Chambers or trial judge retains significant discretion in this regard. In Trusty v. Trusty 20 II SKQB 198, the Court refused to order child maintenance when all of the child's expenses were covered by scholarships. In Guhl v. Guhl2008 SKQB 520, a child who earned $30,000 while completing his welding program was not found to be entitled to support. The Court found that it was counter­intuitive to characterize a student earning that level of income to be a dependent child.

5. The willingness of the child to remain reasonably accountable to parents in relation to his or her plans. A child who is unwilling to do so or who unilaterally and without justification terminates the parental relationship, may be expected to encounter difficulty in nevertheless suggesting thathe is unable to withdraw from the charge of the parents by reason of pursuing a reasonable course of post-secondary education;

Unilateral termination is one of the most contentious issues in the area of adult child maintenance and could be the topic of an entire paper. I intend to only brush the surface in this paper. The current trend in the case law seems to suggest that absent particularly egregious misconduct on the part of the child, that this factor will not, in and of itself, disentitle an adult child to child maintenance. The case law suggests that there must be evidence that there is no relationship whatsoever as a result of the child's actions and that the evidence must be clear and unequivocal that the child has taken actions to remove the parent from his life. Furthermore, the evidence must be clear that the payor parent did not engage in any sort of behavior which would justify the child's decision to remove the parent from his or her life: Hamel v. Hamel 2001 SKCA 115; Brooke v. Hertz 2008 SKQB 461; Foster v. Amos 2010 SKQB 408; Willick v. Willick 2009 SKCA 133; Moore Orlowski v. Johnston 2006 SKQB 279.

The fact that the father and children have an unconventional relationship, the fact that the child treats the parent with disdain, or the fact that the child and the parent have had an argument and neither makes any significant effort to have contact with each other, is not sufficient to ground a finding of unilateral termination sufficient to terminate child maintenance. Instead, the child's behavior will be directed towards the issue of quantum of support rather than entitlement to support: Willick v. Willick 2009 SKCA 133.

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Even in the cases where the child has posted obscene messages regarding the mother on Facebook, assaulted the mother by attempting to strangle her with a seatbelt and returned gifts and cards she sent to the child, where a Court finds that this behavior stems from the parents' dysfunctional relationship, the Court may take the view that unilateral termination has not taken place such as to terminate entirely the responsibility to pay child maintenance: Lamontagne, supra.

6. The plans or expectations that the parents may have had in mind in relation to the post­secondary education of their child, or each of their children, bearing in mind that reasonable parents are ordinarily concerned to treat each of the children comparatively equally; in this regard, the Court will not only look at the parents' stated intentions but also their level of education and the parents' actions in this regard. In Foster v. Amos 2010 SKQB 409, the Court took into account the fact that the father was paying into an RESP for an child from another relationship as evidence that he would have supported post-secondary education for the adult child. In H. (D.M.) v. M (C.M.), supra, the Court took into account the fact that the mother was a lawyer and the father an education administrator in determining that the parties would have wanted their child to take additional education. In Guhl v. Guhl, supra, the Court took into account the parent's means in determining what their expectations might have been.

7. The means, needs and other circumstances of the parents including family responsibilities customarily borne by reasonable parents; It appears that, in many cases, that this factor is given significant weight although, again, it appears this issue goes more to the quantum of support to be paid rather than to entitlement to support. In Guhl v. Guhl, supra., the Court, given the limited means of the parents, determined that the parties would not have promised full support for another university degree. In Chyz v. Prystupa 2008 SKQB 347, the Court reviewed the means of the parents and determined that the parents would not have promised to pay for the child's university education but would have provided some aid with expenses and thereby found entitlement but adjusted the quantum.

8. Such other circumstances as may be relevant to the matter.

Geran v. Geran 2011 SKCA 55

C. QUANTUM

As outlined earlier in this paper, many of the factors set out as determining entitlement to

support also affect the Court's determination of the quantum of support to be paid when an adult

is seeking support.

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Section 3(2) of the Federal Child Support Guidelines provides the framework for determining

the appropriate quantum of child support for an adult child who has been shown to remain a

"child of the marriage" or a child entitled to support within the context of the Divorce Act and

The Family Maintenance Act.

The Court may, depending on the circumstances, resort to the amount specified in the

presumptive tables as well as add on section 7 expenses or utilize 3(2)(b) if the Court is of the

view that the presumptive amount would be inappropriate.

Generally, the Courts utilize section 3(2)(a) (Table support) in cases where the child continues to

reside at home with his or her parent and does not have significant or any income or savings

available to fund his or her education. The closer a child's circumstances are to those of a

minor child residing at home with his or her parents, the more likely it is that the Court will

simply apply section 3(2)(a).

With respect to section 7 expenses, such as tuition and books, the Court must take into account

the net after tax costs of the same.

In the event that a child has significant income or savings, the application of section 3(2)(a) is

generally considered inappropriate and section 3(2)(b) is generally applied, even if the child is

continuing to live with one of the parents: Hagen v. Rankin 2002 SKCA 13(in that case, the

child was earning $12,000 per annum). Often, if there are savings or other income available and

the adult child remains at home with his or her parent and that parent is covering the costs of his

or her general living expenses, the Court will require the savings or a portion of the other

available income to be used towards the section 7 expenses.

Another occasion when Section 3(2)(b) is often used when adult children are not residing at

home but are attending school. Because section 3(2)(b) is based upon the actual needs of the

child and not a presumption, it is very important to lay a proper evidentiary foundation for the

Court if one is seeking support for an adult child. It is useful to the Court to have a budget

prepared by the child outlining his or her income and expenses as well as complete income

information. It is often useful to have the child swear an affidavit and/or financial statement

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setting out his means and expenses as well as providing copies of income tax returns and pay

slips if at all possible. The numbers in the child's budget should be supported, as much as

reasonably possible, with documentation evidencing the same. The Court should be provided

with proof of the costs of the child's tuition and books, if at all possible, as well as evidence

regarding all sources of funds such as scholarships, bursaries and student loans available to the

adult child: Geran, supra. A Court will then go through the exercise of weighing the parents'

ability to pay, the reasonableness of the child's expenses and the child's ability to contribute to

the costs of his or her education in order to come up with an appropriate amount of support:

Shukin v. Simkin 2006 SKQB 93.

There is now a recent trend in the Court to require the adult child to fund between one-third to

one-half of his or her education: Boyachuk, supra.

With respect to RESPs, if one of the parties has been the only party to contribute to an RESP

since the parties' separation, the Court will generally not consider the RESP in determining the

appropriate quantum of child maintenance as the RESP is seen as savings toward a future

obligation: Foster v. Amos 2010 SKQB 409.

The Court can order that child maintenance be paid directly to the adult child. This will

generally occur when the child is not residing with either of the parents and when there is little

evidence to suggest that the payor will not pay the same: Burzminski v. Burzminksi 2010 SKCA

16.

Section 4 of the Federal Child Support Guidelines can also have an effect on quantum. With

adult children, for whom the payor parent earns over $150,000 per year, an analysis pursuant to

Francis v. Baker [1997] 3 S.C.R. 250, is required. The court must determine whether the

Guideline amount of support is "inappropriate" which means unsuitable. This will be

particularly applicable in cases where the child resides with the recipient parent and the recipient

parent is covering the child's living expenses. In cases where section 4 applies, the onus is on

the payor parent to show the Guideline amount is inappropriate having regard to the means,

needs and other circumstances of the parties and the child. The evidence must be clear and

compelling to justify departure from the Guidelines. Generally, the recipient parent should

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provide a budget, although it is not legislatively required. The closer the payor's income is to

$ 150,000 the less likely it is a Court will vary the Table support. With adult children who have

substantive earnings or savings or live away from home, section 3(2)(6) will come into play.

In Radford v. Radford, 2010 SKQB 157, the Court refused to order a reduced amount of child

maintenance for an adult child when the payor's income was fixed at $349,870.01.

Section 5 of the Federal Child Support Guidelines may also have an effect on the quantum of

support for an adult child to whom the payor parent stood in loco parentis. This only has

application in cases where the child maintenance application is brought under the Divorce Act.

The Court will generally consider the ability of the biological parents to contribute to the support

of the child in determining quantum as well as the income, needs and other circumstances of the

parties and each of the parents. It is not necessary to establish and quantify what the biological

parent should pay before determining the quantum owing by the loco parentis parent: Boyko v.

Boyko 2010 SKQB 247.

In addition, unlike cases involving biological children, the standing of being in the place of a

parent is not static and can change. In Ollinger v. Ollinger 2006 Carswell Sask 646, Mr. Justice

Sandomirsky found that the children who had rejected any contact with their step-father for 7

years were not entitled to support because they were mature enough to have independently

evaluated their decision to reject their step-father (the children were 17 and 19 years of age

respectively).

The issue of entitlement and quantum of adult child maintenance is an evolving one and is

heavily dependent upon the facts before the Court and the exercise of judicial discretion.

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