Child Support

Can Kids Take a “Gap Year” (or Two) and Still Get Child Support?

Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

Can Kids Take a “Gap Year” (or Two) and Still Get Child Support?

If a child over 18 decides to take a break from school, how much time do they get to “figure it out”, before losing the right to child support?

That was the scenario in a case called Edwards v. Edwards. The mother had been previously ordered to pay about $2,200 per month in child support for her two sons, both of whom were now over 18 and living full-time with the father.

The court granted the mother’s request to end support, but left it open to the father to re-apply if the boys resumed their studies. – Michelle Mulchan, Associate Lawyer

She now asked the court to end her financial obligation, arguing that when the original order was made in 2018, it was predicated on both boys actually attending school.  However, in the time since, one of the boys had been out of school for a full two years, and the other had not attended anywhere for about one year. Neither were currently enrolled in any future program of education whatsoever.

Instead, they both worked full or part time intermittently at various jobs. They had apparently each decided not to enroll for the 2020-2021 school year because they did not want to do online learning. Beyond that, their plans were unclear.

The mother argued that since they had each opted to enter the workforce rather than continue in school, this was a material change that should let her off-the-hook for child support. She asked the court to order that she be reimbursed for the amounts she had overpaid.

Interestingly, within two weeks of the mother brining her court application to end support, one of the boys applied and was accepted to a two-year program, and the other did the same a week after that.

The court granted the mother’s request to end support, but left it open to the father to re-apply if the boys resumed their studies. This was despite the father stating that he needed the mother’s child support payments, since he was on medical leave and unable to work.

The court noted that the definition of “child of the marriage” included a long list of qualifying elements, and as the support recipient, it was up to the father to prove the boys still met the threshold based on their dependant status..

In prior decisions, courts have allowed adult children to validly take a “gap year”; however, there had to be a limit. The court explained:

Apart from these brief periods, however, and in the absence of “illness or other disability”, courts generally require attendance at school for an adult child to maintain his or her dependant status. Adult children cannot simply choose to remain economically dependant on a parent, they must be “unable” to withdraw from the parent’s charge. Nor can adult children accumulate multiple gap years to forestall their independence.

After noting that the boys might regain their dependent status in the right future circumstances, the court cut off their child support entitlement, adding:

In the present case, I am satisfied that both children should be permitted to take a “gap year” in order to “figure out” what they want to do. … It is not unusual for minor children to take a “gap year” before they are ready to attend post-secondary education, and they do not necessarily lose their dependant status as soon as they turn 18 years of age.

An adult child cannot, however, indefinitely postpone the commencement of post-secondary education and expect to remain a dependant, entitled to parental financial support. … While virtual learning may not be ideal, [the boys’] decision not to enroll in any educational program for the 2020-2021 academic year was their choice. It was a choice that, as adults, they had every right to make, but it is not a choice that the [mother] should be required to pay for.

Since the mother was in arrears on some of her support payments (she was unemployed, having recently lost the job she’d held for nearly 30 years due to COVID-19), the court applied the support overpayments to unpaid past amounts.

For the full text of the decision, see:

Edwards v. Edwards, 2021 ONSC 1550

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.