Child Support – Disabled Child

Section 31 of the Family Law Act states that “Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.  The support obligation does not extend to a child who is 16 yrs of age or older and has withdrawn from parental control”.

Section 2 of the Divorce Act (which only applies to children of spouses or former spouses) states that a child is entitled to child support if the child is “under the age of majority and who has withdrawn from their charge, or is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their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 necessities of life”.  Therefore, a child may be entitled to child support for an indefinite period of time if the child is unable to “withdraw” from the control of their parents.

If a child is capable of living independently and capable of obtaining the necessities of life, the child would not meet the definition of a child of the marriage.  It may be necessary to provide third party evidence from teachers, objective individuals etc. to demonstrate the need of the child (Louise v. Scheuer 1995 CarswellBC 1030 BCSC).  Please contact our family lawyers directly to discuss this issue further if you have any questions regarding family law. Our Fine & Associates Toronto divorce lawyers welcome any inquiries.