The Divorce Act defines a “child of the marriage” as: 

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

(a) is under the age of majority and who has not withdrawn from their charge, or 

(b) the age of majority or over and under their charge but unable, by reason of illness or other cause, to withdraw from their charge or to obtain the necessaries of life.”

In a recent decision, an Ontario court had to determine whether a couple’s adult son qualified as a child of the marriage for the purposes of child support based on the mother’s claim that the son was mentally ill.

Mother Claims Adult Child Has Mental Illness

The parents were married on May 5, 1994 and separated on May 5, 2009. They had two children, born in 2000 and 2004.

One of the main issues at trial was child support claimed by the mother. Specifically, the court had to determine whether the older son, now 20 years old, was a child of the marriage for the purpose of child support.

The mother claimed that the son was disabled by mental illness. She presented evidence that he had tried to address his issues with mental health and addiction, but that he was not able to do so independent of her physical and financial assistance and he could not provide for himself. She said that the son “struggles to manage his finances due to his addiction” and that, in any event, he could not live on his own with an income of $672 per month which he was receiving from the Ontario Disability Support Program (“ODSP”). Finally, the mother claimed that the father had alienated the son and that they had no communication, essentially because of the father’s non-supportive attitude to the son’s “mental illness.”  

In turn, the father argued that the son did not suffer from mental illness but had chosen to continue a negative lifestyle of drug use and alcohol abuse that the mother enabled. He said that he loves his son and wanted to see him get his education and be off of drugs, but as long as his mother was allowing him to live in her house and spend his money on drugs and alcohol, the son had no incentive to straighten out his life. Finally, the father claimed that the mother was enabling the son’s pattern of drug abuse and non-attendance at school by giving him free room and board and no responsibilities. The father said that the mother’s decisions, while well-intentioned, had resulted in the son remaining dependent on drugs as opposed to furthering his education and becoming an independent member of his community.

The mother’s response to the father’s claims was that the receipt of ODSP funds confirmed the son’s disability and thus brought him into the wording of a child of marriage under the Divorce Act, with her counsel stating:

“Regardless of whether [the father] personally believes that [the son]’s mental illnesses constitute a disability is irrelevant – the law confirms for us that they do. His parenting beliefs are also irrelevant as [the son]’s diagnosis are real.”   

Court Refuses to Award Child Support

The court began by explaining that it is well settled that an applicant for support bears the onus of proving that the child is still “a child of the marriage.” Normally the onus will not usually be a heavy one where education is being pursued by the child.  

However, the court found that the evidence presented by the mother was not persuasive and that the son’s disability payments were not determinative of the issue. The court found that the mother’s evidence did not support claims that the son suffered from schizoaffective and bipolar disorder. Furthermore, even if he was mentally ill, the mother had not demonstrated that the son was mentally or physically incapable of making his own decisions.  

As a result, the court did not accept the mother’s argument that the son was involuntarily disabled by a mental illness.

Additionally, the evidence had not established that the son was pursuing his high school diploma. 

Finally, the court stated:

“The evidence clearly supports the view of [the father] that [the mother] is enabling their son […] in his continuance of addiction, non-attendance at school and failure to maintain regular employment. Well-intentioned though [the mother] may be, it is incomprehensible that [she] fails to grasp the serious ramifications of her allowing [the son] to do as he pleases while living under her roof payment free. He has been given full access to a payment designed to support someone with a disability who has no other means of support. Unfortunately, she believes she is helping her son with a mental illness.”

As a result, the court found that the son was no longer a child of the marriage as defined by the Divorce Act and that the mother was not entitled to child support or s. 7 benefits for her now 20-year-old son. 

Get Advice 

At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.