197.4]
COMMENTS – COMMENTAIRES
A New Deal for Children of the Marriage ?
A parent who sends his son into the world uneducated and without skill
in any art or science does a great injury to mankind as well as to his own
family, for he defrauds the community of a useful citizen and bequeaths
to it a nuisance.’
The meaning of the phrase “children of the marriage” as defined
in the Divorce Act 2 has recently been clarified by the Supreme
Court of Canada in Jackson v. Jackson.8 This guidance is to be
welcomed since it deals with a point of law of some importance,
related as it is to the support and maintenance of children of
divorced parents. It is an area of the law which has been referred to
as “relatively primitive” 4 and is in need of comprehensive defini-
tion; however judicial and legislative reform has been somewhat
hampered by rapidly evolving concepts of both marriage and divorce
in the latter half of the twentieth century.
Surprisingly, a child’s right to maintenance must be statutory
in nature. At common law, although a father had a moral obligation
to support his child and the infant had a right to be supplied with
necessaries, he had no direct means of enforcing this obligation.
The mother, providing she was also the wife, could enforce his
right to maintenance, but only indirectly, through her” power to
pledge her husband’s credit for necessaries.6 Fortunately, the child’s
rights have been expanded by statute7 and insofar as one is con-
cerned with the rights of children upon the divorce of their parents,
the Divorce Act sets out the governing principles. Section 11 of the
Divorce Act provides that:
(1) Upon granting a decree nisi of divorce, the court may, if it thinks it
fit and just to do so having regard to the conduct of the parties and
the condition, means and other circumstances of each of them, make
one or more of the following orders, namely:
(a) an order requiring the husband to secure or to pay such lump
sum or periodic sums as the court thinks reasonable for the
maintenance of
1 II Kent’s Commentaries (1889), Part IV, 195.
2 R.S.C. 1970, c.D-8, hereinafter referred to as the Divorce Act.
3 (1973), 29 D.L.R. (3d) 641.
4 Macdougall, “Alimony and Maintenance” in Mendes da Costa, I Studies in
Canadian Family Law (1972), 285.
5 Payne, Power on Divorce 2d ed. (1964), 576.
6 Cf. supra, f.n.4, 289.
1 The first statutory change was the Poor Relief Act, 43 Eliz.. c.2.
McGILL LAW JOURNAL
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(i) the wife
(ii) the children of the marriage, or
(iii) the wife and children of the marriage;
(b) an order requiring the wife to secure or to pay such lump sum
or periodic sums as the court thinks reasonable for the main-
tenance of
(i) the husband,
(ii) the children of the marriage, or
(iii) the husband and the children of the marriage; and
(c) an order providing for the custody, care and upbringing of the
children of the marriage.
This section is to be interpreted in light of the definitions set out
in s.2 of the Act, of which the most material are as follows:
In this Act
“child” of a husband and wife includes any person to whom the husband
and wife stand in loco parentis and any person of whom either of the
husband or the wife is a parent and to whom the other of them stands
in loco parentis;
“children of the marriage” means each child of a husband and wife who
at the material time is
(a) under the age of sixteen years, or
(b) sixteen years of age or over and under their charge but unable, by
reason of illness, disability or other cause to withdraw himself from
their charge or to provide himself with the necessaries of life ….
One of the first problems encountered by the courts involved
children of the marriage who were sixteen years of age or over
but who remained, in some capacity, as students studying at re-
cognized educational institutions. The issue raised was whether
the “ejusdem generis” rule would limit the meaning of “by reason
of illness, disability or other cause” to situations involving actual
physical disability.
Beginning with Grini v. Grini,8 the courts have overwhelmingly
taken the view,9 with few exceptions, 0 that “other cause” includes
8 (1969), 5 D.L.R. (3d) 640 (Man. Q.B.).
D Tapson v. Tapson (1970), 8 D.L.R. (3d) 727 (Ont. C.A.); Jones v. Jones (1971),
17 D.LR. (3d) 217 (Sask. C.A.); Sweet v. Sweet (1971), 17 D.L.R. (3d) 505
(Ont. H.C.).
l0 Madden v. Madden (1970), 14 D.L.R. (3d) 100 (Man. Q.B.).
Bastinj. stated at pages 102-3 that:
In my opinion it could be logically argued that by using the word
“unable” Parliament intended to limit the exceptions to cases where
the person in question was incapable from want of sufficient power,
strength, resources or capacity, but not from want of volition to
support himself.
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COMMENTS – COMMENTAIRES
full-time attendance at secondary schools or similar institutions.1
It is submitted that part-time attendance, to the extent that it
renders the child “unable… to provide himself with necessaries
of life”, would similarly entitle the child to maintenance.
Having established the Grini principle, the courts were soon
faced with the problem of how far to extend it. Should a father
be required to support a son or daughter who is pursuing a university
education? And if so, should the court extend such maintenance
beyond the child’s age of majority?
Ironically, the major impetus for restricting the scope of main-
tenance provided in s.l1 of the Divorce Act came from the decision
of Laskin,J.A. (as he then was) in Tapson v. Tapsono2 a case which
is often cited in support of the liberal view propounded in Grini
v. Grini.13 While allowing maintenance for a 16 year-old daughter
who was attending a secondary school, the court stated that:
If it should prove to be the case that a child, having reached the age of
16, withdraws from a parental home and goes out to live by himself or
by herself, other considerations will have intruded to make this provision
probably no longer applicable.’ 4
Using these words as a stepping stone, the Ontario High Court in
Clark v. Clark adopted a constrictive approach by noting that
“Laskin,J.A. appears to give support to limiting the schooling to
secondary school education and to children living at home”.’5 In
coming to this conclusion, the Court was genuinely concerned with
the difficulties which would arise unless the words “children of
the marriage”, as defined in the Divorce Act, were limited:
Is a child over 15 years old living outside the home, but helped by a
parent to go to school, “a child of the marriage”? Is a child over 15
years old going to a private or boarding school, or taking a special course
for some short-term objective or taking university work and living outside
the home at a parent’s expense included? Is a child learning weaving,
needlework, carpentry or domestic science
included? Is an unpaid
apprentice living at home included?’0
In the same year, the Alberta Court of Appeal took a less
stringent approach. The Court extended maintenance to a child
11 The learned trial judge in Grini ordered the father to provide maintenance
for a 16 year old daughter until she completed Grade XI and a one-year
course at a business college.
12 (1970), 8 D.L.R. (3d) 727 (Ont. C.A.).
13 (1969), 5 D.L.R. (3d) 640 (Man. Q.B.).
14 (1970), 8 D.L.R. (3d) 727, 729 (Ont. CA.).
Is (1971), 16 D.L.R. (3d) 376, 380.
‘f Ibid.
‘7 Re C. and C. (1971), 14 D.L.R. (3d) 477 (Alta. App.Div.).
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pursuing post-secondary education on the basis that university
training was a “necessary” referred to in s.2 of the Divorce Act.
The learned trial judge stated that:
It is unnecessary to dwell upon the complexity of modem business and
industry and the necessity for a specialized training for those who are
to be employed therein. High school and university are but succeeding
steps in such a training.’S
The conservatism exhibited by some Canadian Courts concerning
the importance of university training is disappointing, to say the
least. In contrast, an American court recognized the father’s obliga-
tion to provide support for a child attending college as early as 1926,1
and by doing so established a precedent for others.2
A further attempt to limit the scope and application of s.11 of
the Divorce Act came in the form of confining the meaning of the
word “child” as used in s.2 to someone under the age of 21 years.
In Sweet v. Sweet,2 1 the Court refused to allow the mother mainten-
ance for a 21 year-old son who was in the third year of his university
training by saying:
… I am inclined to interpret the word “child” in the Divorce Act, 1967-
68 (Can.) c. 24 in its ordinary sense and to hold that there is no obligation
upon a parent to support a healthy, able-bodied son or daughter who
has attained the age of 21 through an educational career indefinitely
extended.22
However, the court did acknowledge, albeit indirectly, the neces-
sity of higher education, for it made an award on behalf of a
19 year-old daughter “so long as she continues to reside with the
petitioner and to attend school or other educational institutions
and has not attained the age of 21 years”.2 3
Both the trial court and the British Columbia Court of Appeal
carried the argument a stage further in their consideration of the
Jackson case. In that case the appellant mother, who had been
divorced in 1965, had been receiving maintenance from the res-
pondent father for her children, including a daughter named
Penelope, pursuant to an order of the Court made in 1971 under s.11
of the Divorce Act. He terminated his payments for Penelope’s
‘sEsteb v. Esteb, 138 Wash. 174, 244 P. 264 (1926).
19By 1968 at least 26 states had followed the Esteb decision, and held a
college education to be a necessity. See Note, The College Support Doctrine:
Expanded Protection for the Offspring of Broken Homes, (1969) Wash.U.L.Q.
425.
20 (1971), 17 D.L.R. (3d) 505 (Ont. H.C.).
21 Ibid.
22 Ibid., 508.
23 Ibid., 509.
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COMMENTS – COMMENTAIRES
maintenance on her nineteenth birthday, taking the view that by
virtue of the Age of Majority Act, 1970 (B.C.) c. 2, she was no longer
a minor or infant and therefore no longer a “child of the marriage”.
The case came initially before Ruttan,J. of the British Columbia
Supreme Court.24 Although making it abundantly clear that his
sympathies were with the appellant mother he felt constrained to
give “child of the marriage” a very restrictive interpretation. Starting
with the proposition “that under the common law there is no legal
obligation on parents to maintain children, except those which
rely on criminal sanctions for neglect”, 25 he refused to accede to
counsel’s argument that it was Parliament’s intention to extend
the obligation to children who had passed the age of majority.
While canvassing many of the recent cases, he preferred to rely
on the dicta of Mr Justice Wright in Clark v. Clark 26 and Wood
v. Wood and stated that:
I am of the opinion that the Court has no power.., to order citizens to pay
maintenance for other adult citizens merely because the relationship
of parent and child exists. 27
The British Columbia Court of Appeal 2 s agreed, in what could
only be described as a curt, legalistic judgment which ignored any
consideration of public policy. Mr Justice Ruttan had noted the
desirability of extending, in appropriate circumstances, the court’s
jurisdiction to award maintenance to children who had reached 19,
the age of majority in British Columbia. However, his principal
concern lay with the question: If maintenance for children is not
limited at the age of majority, where can the line be drawn?
The Supreme Court of Canada, in dealing with the Jackson
case on appeal,29 has answered that very question. In delivering
the judgment of the Court, Ritchie,J. stated that:
I think the answer to the question posed… is that the line is to be
drawn at such point as the Court, granting a decree nisi of divorce, thinks
it just and fit to draw it in all the circumstances of the particular case….30
24 [1971] 5 W.W.R. 374 (B.C. S.C.).
25 Ibid., 378, quoting Wright,J. in Wood v. Wood (1971), 16 D.L.R. (3d) 497,
499 (Ont. H.C.).
26 Cf. supra, f.n.15.
27 ackson v. Jackson, [1971] 5 W.W.R. 374, 378, quoting Wright,J. in Wood v.
Wood (1971), 16 D.L.R. (3d) 497, 500.
28 (1972), 22 D.L.R. (3d) 583; [1972] 1 W.W.R. 751.
29 (1973), 29 D.L.R. (3d) 641.
3o Ibid., 650.
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The Court emphasized that the period during which “children of
the marriage” may be entitled to maintenance under the Divorce Act
is totally unrelated to their attaining the age of majority.
… I am of the opinion that the words “children of the marriage” as defined
in s.2(b) are clearly used as a term of relationship and that, with respect
to each child who is “sixteen years of age or over” they do not create any
age barrier but on the other hand include all such children irrespective of
age who qualify as being unable to withdraw from the parent’s charge or
provide themselves with the necessaries of life for the reasons stated in
the subsection.3 ‘
Moreover, to adhere to the capricious cut-off point advocated by
the Courts below would have precluded consideration of maintenance
even in the case of a 19 year-old child who is permanently disabled
by paralysis. The Supreme Court of Canada justifiably found such
a position untenable.
Regrettably, the Court did not express itself as clearly with
regard to the inclusion of a university or college education as a
necessary within the meaning of the Divorce Act. RitchieJ. adopted
the reasoning in Tapson, where Laskin,J.A. confined his judgment
to the situation where a “child is in regular attendance, as in this
case, in a secondary school, pursuing an education in the ordinary
course designed to fit her for years of life ahead”.2 Although there
is a specific mention of “secondary school”, it is submitted that
the latter part of the quotation conveys its true intent. So long as
the child is pursuing educational activities which are “designed to
fit her for years of life ahead”, the court may find them necessary
and that the parent is liable to provide them for the child. Implicit
in this instruction is the obligation on the court to engage in a form
of subjective evaluation of the child’s academic abilities and the
probability of his benefiting from the education proposed.
The Jackson case is important because it clearly overrules the
Sweet ” contention that the age of majority limits the jurisdiction
of the Court to grant maintenance under s.11 of the Divorce Act.
It also abandons the thesis proposed in Madden 3 4 that a university
education can never be necessary, and that Parliament intended
to limit support under s.11- to cases of physical disability. Instead,
the decision vests the Court with a wide cloak of discretion in every
case where the child is sixteen years of age or over to determine
the age at which parental support is to cease, as well as items
to be included in a particular child’s list of necessaries.
31 Ibid., 647.
32 Cf. supra, f.n.12, 728-29. The emphasis is mine.
33 (1971), 17 D.L.R. (3d) 505 (Ont. H.C.).
34 Cf. supra, f.n.10.
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COMMENTS – COMMENTAIRES
Unfortunately, the Court did not see fit to provide guidelines
for the exercise of that discretion. While directing the matter to be
remitted to the Court of first instance because the merits of the
maintenance applications had not been heard, the learned judge
neglected to outline the factors which could be relevant.” For
example,36 to what extent should the social status and educational
background of the parents be considered? Are the number of
children in the family relevant to a particular child’s application?
To what extent is the income of the custodial parent, or the parent
with whom the child is living, relevant to the amount of maintenance
to be provided by the other parent? Should the child’s own income
and savings be considered as a factor in decreasing the parental
obligation to support? 37 What significance is to be attributed to
the age of the child, all other factors being equal? To what extent
should the disadvantage caused the parent by continued support
be considered?
Perhaps a more difficult problem will be the consideration
to be given to the past academic performance of the student. Is
the student armed with a scholastic record of straight A’s to be
treated differently from one who has only been able to muster
B’s? 38 Or should all questions of academic admissions be left
entirely with our universities and removed entirely from our
courtrooms?
Moreover, the Supreme Court, although given the opportunity
to do so, refused to discuss the basic policy underlying the issues
in the Jackson case.
Equity suggests that a child of divorced parents should be
in no worse position than a child from an unbroken and happy
home. But should he be in a better position? It is an accepted fact
that many parents, while having sufficient means, do not send
their children to college. Society does not condemn them nor does
the criminal law prosecute them. Why then, do the courts impose
a more rigorous duty on divorced parents? Does not logic require
35 In all fairness, the Court did quote from s.11 of the Divorce Act which
requires the Court to have “regard to the conduct of the parties and the
conditions, means and other circumstances of each of them” but it is submitted
that this is far from instructive.
36 For a discussion of some of these factors, cf. supra, f.n.19.
37 The Court appeared to think so in Sweet v. Sweet, supra, f.n.9.
38 If the child does have such a direct interest in the outcome of the proceed-
ing, should he not be given separate standing and the right to represent his
interest with counsel?
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that parents of children from happy homes be similarly compelled
to send their children through post-secondary levels of education?
But are we prepared to say that the Court and not the parents
determine who in our society should receive a university education? 31
On the other hand, a parent is normally not expected to maintain
a child indefinitely and his obligation, in most cases, must end
at some time. Is it not equally unreasonable to establish an arbitrary
cut-off point for support and thus to eliminate all consideration
of special circumstances? No doubt many children who have been
forced to put themselves through college have benefited greatly
from that experience. However, to suddenly terminate financial
support for a student at the age of majority, when he may have
one or two years of study left to complete a university degree,
may also be grossly inequitable.
The failure of the Jackson Court to respond to these basic
problems will surely be the cause of continued litigation in the
future. The extent of the obligation imposed by the Divorce Act
to maintain their children remains undefined, and lawyers will be
well advised to utilize separation agreements in order to provide
continued support for “children of the marriage” beyond their
age of majority.
Heino Lillies *
30 In Esteb v. Esteb, supra, f.n.17 the court considered that because of the
absence of a separated parent from the home, he would not have the
child’s talents and abilities before him daily and therefore might not fully
appreciate them, and that this justified the court’s interference in such cases.
* LL.B. (Queen’s), LL.M. (London), Assistant Professor of Law, Queen’s
University.
