Brett Coleman
'Convenient Dependency' - Not a Basis for Entitlement to Child SupportIn the recent case of Kohan v. Kohan, 2016 CarswellAlta 736, Alberta’s Court of Appeal addressed a number of issues including whether a father had an obligation to pay child support for an adult child. The child in question was 19 years old and was finishing high school by correspondence while pursuing a singing career. The Trial Judge had held the 19 year old daughter was unable to withdraw from her parent’s charge because of her continuing education and her lack of ability to earn sufficient income from her singing career, and concluded that she therefore met the definition of “child of the marriage” under the Divorce Act.

The Court of Appeal emphatically disagreed, stating:

“There is a strong expectation that most teenagers will graduate from high school by the time they are 18 or 19. Obviously, not every student can meet that timeline, but deviations from it call for some explanation. An adult child cannot claim indefinite dependency by completing high school one course at a time, and thus remain a child of the marriage into middle-age. An adult child who has resolved to complete her high school, and looks to her parents to fund that education, is expected to focus diligently on that objective, and pursue it full-time in a structured environment.”

The Court of Appeal pointed out the 19 year old at issue had made a lifestyle choice and, while she should be encouraged in her singing career, she is not entitled to have her lifestyle funded by her parents. The burden of proving she was a child of the marriage entitled to support was on the payee mother, and the Court was not satisfied she had met that burden. The ABCA concluded that the weight of the evidence was that the daughter at best found it “convenient” not to withdraw from her parent’s care because she was pursuing a career that did not allow her to be self-sufficient, and that her attempts to pursue her high school education were of secondary importance to her. That is, if the daughter was a child of the marriage, it was not for education reasons.

Accordingly, the result was that the Trial Judgment regarding child support was set aside.

This is an important case from the Alberta Court of Appeal, as parties often assume children are unequivocally entitled to support at least until they complete high school, irrespective of the circumstances. This case makes it clear this is not so.