Appeal Court Upholds Finding that Adult Children Remain Dependents

The Bye’s divorced in 2010. In 2015 they entered into a consent order for child support for their two children, who were then 10 and 12 years old. The youngest child turned 19 in August of? 2019 and the eldest attained the age of 19 in February? 2021. Both remained in the primary residence of Ms. Bye.

?In November 2022, Mr. Bye brought a court application to terminate his obligation to pay child support to the children’s mother, suggesting that child support automatically terminated upon a child attaining the age of majority.

?The evidence revealed? that each of the children had been designated as “persons with disabilities” under British Columbia’s Employment and Assistance for Persons with Disabilities Act SBC 2002 c.41.? The youngest child was diagnosed with a schizoaffective and substance abuse disorders, while the eldest had an intellectual disability and needed support to “live successfully” as opined by the expert who prepared a psycho-educational assessment in January 2021.

?Mr. Bye argued that a child support order was “spent” upon a child attaining the age of majority and that the onus was on the parent with primary residence to apply to continue support at the that time. He relied on Dring v. Gheyle 2018 BCCA 435, where three principles emerge:

?a)???a child support order is “spent” when the child is no longer a “child” for support purposes;

b)???however, the child support order is not “spent” when the child reaches the age of majority if the child continues to qualify as a “child” for support purposes; and

c)???if the parents are unable to agree and an application is brought, the onus is on the recipient of child support to prove that a child over the age of majority continues to qualify as a “child” for support purposes.

Mr. Bye focused on the principles espoused in paragraphs a) and c), but to no avail, as the court determined that the parties’ adult children fell within the provisions of the Divorce Act, which provided the test for eligibility for support for adult children and dismissed his application:

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

(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;”

On appeal, Mr. Bye asserted six grounds of appeal including:

a)??? That the chambers judge failed to address the financial capabilities of each child to meet their own expenses;

b)??? That the court incorrectly held that the 2015 child support order was binding on the appellant;

c)???? That the court relied on hearsay evidence in the form of the psycho-educational report;

d)??? That the court failed to address the eldest child’s refusal to maintain a relationship with his father.

?The appeal court reviewed the evidence with respect to each child’s financial abilities, finding that the youngest child worked part-time as a driver delivery food, earning $3,235.00 in 2020 and was only able to manage 4-hour shifts before feeling exhausted and required assistance with banking, taxes, and household tasks.

?The eldest child was in receipt of disability payments which in 2019 amounted to $3,480.00 and in 2020 $11, 003.00, which the court determined did not go to the question of the child’s eligibility for support, but rather the quantum of support, citing CRL v. SLL 2019 BCSC 2103, where the court held that child support may be substantially reduced where income is earned but not necessarily ?eliminated.

?With respect to the appellant’s position that after the age of 19 the child support order terminated, the appeal court held that child support does not automatically terminate at the age of majority and that the Dring case did not support such a proposition.

?The issue of the psycho-educational report was also addressed with the court stating that the chambers judge relied on the report in the context of the evidence regarding the child’s ability to function, which was appropriate as the appellant did not challenge the child’s intellectual disability. The report also indicated that the child met the DSM-5 criteria for the diagnosis and the child’s eligibility for services from the Ministry of Social Development and Poverty Reduction, all of which was not contested by the appellant.

?Finally, the court considered the appellant’s argument that the eldest child had terminated his relationship with the appellant, with his withdrawal providing grounds to end the ?child support, arguments supported by a variety of BC cases including Nordeen v. Nordeen 2013 BCCA 178 and? Shaw v. Ardnt 2016 BCCA 78, where the court narrowed the factor of estrangement to “truly egregious conduct by an adult child to a parent”.? The evidence of the child was that after the appellant refused to assist with the payment of school tuition in May 2022 he had not visited him, after years of an active, engaged relationship. While the appeal court noted that the chambers judge had failed to deal with this argument, it held that the lower court’s dismissal of Mr. Bye’s case was without error.

** This article was first published by LAW 360, a publication of LexisNexis Canada.

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