According to the Divorce Act, a court of competent jurisdiction may, on application by either or both spouses make an order requiring a spouse to pay for the support of any or all “children of the marriage”. Courts have interpreted the phrase “children of the marriage” to include not only minor children, but also those children who have reached the age of majority, but for reasons of illness, disability or other cause, are unable to withdraw from their parents’ charge. In Fallis v. Garcia, we see examples of two such causes.

In Fallis v. Garcia, the parties separated in August 1995, and had two children of the marriage, namely Ryan and Ryley, both born on January 14, 1989. Save and except for a five month period, the children lived with their mother after the parties’ separation. At the time of separation, the parties had an Agreement, which provided for child support, but the Agreement pre-dated the now federally legislated Child Support Guidelines. In 2002, the mother formally requested support for both her children under the Guidelines. The father, however, took great exception to this claim, which ultimately resulted in a strained relationship with both of his sons. In 2007, the mother brought an Application for future and retroactive child support under the Guidelines. This was at a time when the respective children were over the age of majority. Ryley, at this time, had commenced his post-secondary education, whereas Ryan had resumed high school after dropping out on several occasions due to the emotional difficulties he was experiencing following his parents’ separation. In her Application, the mother argued that her sons were both children of the marriage, and thus entitled to receive child support.

The Judge allowed the mother’s Application and held that both children in this case were in fact ‘children of the marriage’ as defined within the meaning of the Divorce Act. Ryley, who had started post-secondary education, was deemed by the judge without question to be a child of the marriage. The issue of whether Ryan could also be considered a child of the marriage was not so clear-cut due to the lack of available medical evidence to support the mother’s claim. The mother alleged in her affidavit that at the time of her separation, Ryan was beginning to show signs of depression and was speaking to her about suicide. Consequently, Ryan was in and out of school. The judge was very sympathetic to the mother’s position on this matter and thus did not find it necessary, nor appropriate for Ryan to become further involved in his parents’ matrimonial dispute by having to submit to medical testing. The judge was confident that Ryan’s emotional difficulties affected his ability to attend school on a full-time basis, and moreover, led to his inability to become self-supporting. As such, Ryan was classified by the judge to be a dependent child, who was therefore entitled to the support of his parents.

The father further argued that he should not be required to pay child support as his relationship with his sons had abated, resulting in them withdrawing from his parental control. The judge, however, faulted the father for the current strained relationship with his children, and ultimately held that Ryan and Ryley should not be deprived of support simply because of the unfortunate circumstances with their father. In the end, the father was required to make retroactive and future child support payments in accordance with the Child Support Guidelines, as the judge was not convinced that the Separation Agreement precluded the mother’s application.