Child of the Marriage
What is a “child of the Marriage” under the Divorce Act?
Under Section 2(1) of the Divorce Act to mean a child of 2 spouses or former spouses at the material time:
- Is under age of majority and has not withdrawn from their charge;
- Is the age of majority or over and is under their charge but unable, by reason of illness, disability, or other causes to withdraw from their charge
Under Section 2(2), a child can include any child for whom one or both spouses stand in place of parents even if the child was never formally adopted.
How is a child defined under the Family Law Act (FLA)?
Under section 31(1), a child is defined as an unmarried child who is either a minor (under 18) or enrolled in a full-time program of education.
How is the FLA different from the Divorce Act?
FLA is no longer different than DA. The FLA was found to be discriminatory against children over the age of majority who are dependent due to illness or disability since it did not provide child support for them. It has been updated to include child support for those children as the DA does due to the court case. FLA now mandates support for dependent adult children who may be ill or disabled. FLA does not require support for married children. The Divorce Act, on the other hand, does not explicitly mention unmarried although they say “unable to withdraw from parental care”. A married child would be deemed to have withdrawn from parental charge and self-supporting and therefore no longer a “child of the marriage” under the DA.
Is a child pursuing a post-secondary education a dependent?
A child studying falls in the second condition, over age of majority but unable to withdraw from parents’ charge due to “other clauses”. Therefore, the child is still a “child of the marriage”.
How is child support determined for a student?
The amount of support is determined by the child’s needs and the financial ability of each spouse to contribute. The court also considers a child’s ability to support themselves.