Can I still get support for my adult son if he has a disability?
Quick Summary
Yes, you may still be entitled to child support for your nineteen-year-old son. Under the Divorce Act, an adult child can still be considered a 'child of the marriage' if they are under your charge and unable to support themselves due to a disability.
The situation
I am currently going through a separation here in British Columbia and I am trying to figure out my finances for the next few years. My ex-husband and I separated about six months ago, and we have one son who is nineteen years old. Normally, I thought child support would stop once he reached the age of majority, but my son has a severe developmental disability that means he cannot live on his own or work to support himself. He still lives with me in our family home and relies on me for every single thing, from his daily meals to his medical appointments. I have already tried talking to my ex about continuing the monthly payments of $800 he was providing, but he says that since our son is technically an adult now, he doesn't have any legal obligation to pay anything more. I am worried about how I will cover the cost of my son's specialised care and basic needs without that help. Does the law allow me to keep receiving support for a child who is over eighteen if they are unable to look after themselves due to their condition?
Detailed Analysis
Under the Divorce Act, the definition of a 'child of the marriage'—which refers to the person for whom support is being sought—is not limited only to minors. The law states that a child of the marriage includes a person who "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"[1].
In your situation, your son is nineteen, which is past the age of majority in British Columbia. However, because he has a severe developmental disability that prevents him from living on his own, working, or obtaining the 'necessaries of life' (the basic things needed to live, such as food and medical care), he may still meet the legal definition of a child of the marriage[1]. Since he lives with you and relies on you for his daily needs and medical appointments, he appears to be 'under your charge.'
If your son meets these criteria, your ex-husband's claim that he has no legal obligation simply because your son is an adult may be incorrect. The law allows for support to continue for adult children who cannot support themselves due to their condition.
It is important to note that while the Divorce Act provides this framework, the specific amount of support and the process for enforcing it may involve other rules. Additionally, if you were also seeking spousal support (money for yourself), the court is required to prioritize child support first[2]. This means "the court shall give priority to child support in determining the applications"[2]. If the court decides to prioritize your son's support, it might result in a lower amount of support being available for you personally.
Statutory Citations
Legal Citation: Divorce Act § R.S.C., 1985, c. 3 (2nd Supp.), s. 2 — Definitions
"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"View Official Legislation →
Legal Citation: Divorce Act § R.S.C., 1985, c. 3 (2nd Supp.), s. 15.3 — Priority to child support
"Where a court is considering an application for a child support order and an application for a spousal support order, the court shall give priority to child support in determining the applications."View Official Legislation →
Important Legal Disclaimer
General legal information, not formal legal advice. The information provided on LawAsked does not constitute formal legal advice and creates no attorney-client relationship. If you require legal assistance, please consult a licensed attorney in your jurisdiction.
Have a situation like this?
Ask the AI Lawyer app about your specific case.
Related Questions
- Is my company's long-term disability plan actually valid?
- Can I get any help if I don't have enough work hours for regular benefits?
- Can I still get benefits if I've been living with my partner for a year?
- Can I get money for my kids while my divorce is still going through?
- Can my ex-partner's new partner stop me from seeing my child?