[55] In Hoadley v. Hoadley (1996), 36 Alta. L.R. (3d) 294, 177 A.R. 361 (Alta. Q.B.), it was held that a 26 year old, who was living with his mother and enrolled in a university program from which he was expected to graduate in two years, was no longer a "child of the marriage". Justice Nash outlines factors relevant to the determination of whether a child should be considered a "child of the marriage". These include, at 296-97:
1. the age of the child;
2. his or her ability;
3. his or her past performance in previous courses;
4. his or her determination to assist with study costs through summer employment;
5. the means of the paying spouse and any obligations to provide for the education of other children;
6. the plans of the parents with respect to the further education of the children especially where the plans were formulated jointly by the parents during cohabitation;
7. the appropriateness of the course selected to generate future employment;
8. the conduct of the parties and the condition, means and circumstances of each of them.
[56] Shannon's decision to attend university was not made in consultation with her father. This factor must be considered in determining whether Shannon is a "child of the marriage". As well, the Respondent is currently unemployed and his employment prospects are uncertain.
[57] Shannon is 26 years old. She has already completed two years of college, at which time she was a "child of the marriage" and "under the charge" of her parents. Since then, she has lived on her own for over three years and has worked various jobs to support herself. During this time, she was no longer "under the charge" of her parents.
[58] I adopt the words of Justice Nash in Hoadley v. Hoadley, supra, where she states, at 298:
There are cases which support the proposition that attendance at a post-secondary institute can be sufficient cause to prevent a child from withdrawing from the parent's charge or from obtaining the necessities of life. However, in considering the definition of "child of the marriage", some consideration must be given to the age of the individual who is in attendance at a post-secondary institution. The older that individual, the greater the weight that should be accorded the age. Otherwise, a divorced parent could remain legally obligated to financially support the child for as long as the child was in attendance at a post-secondary institution, regardless of the child's age.
. . . . .
Although children should be encouraged to pursue a higher education, at some point, they must assume financial responsibility for the expenses they incur.
[59] Shannon should be encouraged to be financially responsible. She has already been supported through two years of college, following which she lived away from her parents for over three years. I do not consider that Shannon is a "child of the marriage" and I find that there is no legal obligation on the part of Mr. McArthur to provide ongoing child support for Shannon.
[60] The application for ongoing child support for Shannon is denied.
[61] The Respondent in his action seeks damages for the Petitioner's failure to comply with the court order granted in Texas or an order that it is void and that the Petitioner is not entitled to spousal support. This issue has been dealt with in the foregoing reasons.
[62] In as much as there has been divided success in this matter I direct that no costs be payable by either party.
Order accordingly.
