As the 10-year anniversary of the release of Kanye West’s “Gold Digger” rapidly approaches, it is important to revisit some of Kanye’s most memorable lyrics which have continued to remain relevant since 2005:

“18 years, 18 years She got one of your kids, got you for 18 years”

However, despite Kanye’s advice, the law regarding child support under the Divorce Act and Federal Child Support Guidelines tells us that a parent’s obligation to support their child may extend beyond Kanye’s cut and dry support termination date of 18 years. For instance, an adult child attending university may still be considered a “child of the marriage” for the purposes of determining a parent’s ongoing child support obligation.

The Honourable Price J. of the Ontario Superior Court of Justice in Friday v. Friday, 2013 ONSC 1931, cites at paragraph 58 the following principles to be applied when determining if an adult child attending university is indeed a child of the marriage:

• A child who is in regular attendance at school is generally unable to withdraw from his parent’s charge or provide for himself.
• A child may therefore bring himself within the definition of a “Child of the Marriage” by pursuing the education he needs to equip himself for the future.
• “Child of the Marriage,” as defined by the Divorce Act, includes children over 16 who are still pursuing their education, now considered a necessary of life. This includes, in some cases, post-secondary education.
• A child who has withdrawn from his studies may be reinstated to his support entitlement by bringing himself back within the definition of child of the Marriage under the Divorce Act.
• It is a question of fact, in each case, whether a particular child remains a child of the Marriage for support purposes.

The Child Support Guidelines direct the court, when assessing the amount of support for a child of the Marriage, whether the child is above or below the age of majority, to use the Tables.

The presumptive rule is that basic child support for a child over the age of majority, as for minor children, is set in accordance with the Tables. If the court considers that approach inappropriate, it may quantify support by another means, as it considers appropriate, having regard to the child’s condition, means, needs, and other circumstances, as well as the financial ability of the spouses to contribute to the child’s support. The onus of proving inappropriateness is on the payor.

In addition to basic child support, the court can order the sharing of a child’s post-secondary education expenses (s. 7(1) (e) of Child Support Guidelines). Such claims are subject to the discretionary tests of necessity and reasonableness.

Children pursuing post-secondary education are expected to contribute to the cost of their own studies. While the level of contribution is subject to debate, an adult child must bear some of the responsibility for his or her own support.

While Kanye may be less than pleased with the above-noted principles set out by Price J., it is also important to also take note of the overarching purpose of child support in Canada:

“Giving birth to a child is an event of profound moral and legal significance. This is an event that gives rise to significant moral and legal duties. Together, the parents have brought a child into the world. Together, they share responsibility for the child’s well-being. The child is vulnerable, and so there is a legal duty to protect. The child cannot support itself, and so there is a duty to provide the necessities of life.

These parental responsibilities are the social pillars upon which the institution of the family is built. These duties are integral to a parent-child relationship. They define who we are, and what we want to be, as a family, as a society, and as a people.

These duties fall upon the parents who chose to create life. These duties fall upon the parents equally. These are obligations that attach at birth. They continue to bind the parents until the infant reaches the age of majority or leaves a state of dependency. These solemn obligations are not readily given up. They cannot be abandoned.” [emphasis added]

Save M.(T.) v. N.(0.), 2007 NUCJ 18, 43 (6th) 233 at 9 – 11

Although Kanye may not be accurate about the law on child support, Kanye’s warning of how someone should be very careful about selecting the mother or father of their children remains important.

ABOUT THE AUTHOR

Andrew Sudano is an associate with Shawyer Family Law. Andrew practices in all areas of family law including custody issues, child support, separation agreements, child protection, as well as contested and uncontested divorces.