Area of Law: Children and the Law
Answer # 967
Who is considered a child under the law?Region: Ontario Answer # 967
There is more than one definition of “child” under the law. Which definition applies depends on the situation. Three common circumstances where the definition of child must be determined occur when deciding if a person:
- Is entitled to child support,
- Has the right to withdraw from parental support and control,
- Can be tried as an adult in a criminal hearing.
For child support issues, the Ontario Family Law Act, the federal Divorce Act and the Ontario Children’s Law Reform Act apply.
The Ontario Family Law Act defines a child as including a person whom a parent has demonstrated a settled intention to treat as a child of his or her family, except where the child is placed in a foster home.
Under the federal Divorce Act, “child” is defined as a “child of the marriage,” or a child of two spouses or former spouses who is under the age of majority, which is 18 in Ontario, and who has not withdrawn from his or her parents’ charge. A person who is 18 years old or over may also be considered a child for child support purposes if he or she is unable because of illness, disability, or other cause such as being enrolled in post-secondary education, to withdraw from under his or her parents’ charge and obtain the necessaries of life.
Also, for purposes of support, the Ontario Children’s Law Reform Act says that a child’s status as a child of his or her parents is independent of whether that child was born in or outside the marriage.
Although the definitions vary slightly, the basic concept that courts seem to follow in determining who is considered a child is the concept of dependency. If a person is dependent on his or her parents and has not withdrawn from their authority, and can show a reason why he or she is dependent, this person will probably be considered a child under the law.
Right to withdraw from parental control
A child who is 16 years old or older is entitled to withdraw from parental support and control, and will no longer be considered a child for the purposes of parental support. In other words, a person who is 16 years old or older can legally leave home and live on their own.
A person who has reached the age of majority, which is 18 in Ontario, is not considered a child for the purposes of criminal law. It is important to note that the individual must have been 18 years of age at the time of arrest because in many instances, it may take more than one year for the case to be tried. There are occasions, however, where the individual is close to being 18 years old and the crime is sufficiently hideous that the Crown may decide to try the individual as an adult instead of a young offender.
That said, children under the age of 18 may be sentenced as adults for serious and violent crimes, such as murder and aggravated sexual assault, once they are found guilty by a Youth Court under the Youth Criminal Justice Act. Visit the Young Offenders section of Criminal Law for more information.
For more information about children and the law in Ontario, refer to the Ministry of the Attorney General.
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