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Child support obligations do not always end when a child turns 18. A recent case set out the criteria used by courts to determine whether parents must pay child support for adult children who are pursuing a post-secondary education.

What Happened?

The mother and father were married in October 1986 and separated in 2013.

The mother and father had two children. At the time of the court case, their son was 25 years old and independent, though he lived with the mother. Their daughter was 22 years old and had just completed her first year of university.

In 2018, the mother and father went to court to settle a number of issues, including child support for their daughter.

Parties’ Positions

The mother wanted the father to pay $798 per month in child support for their daughter.

The father asked the court to dismiss the request for child support because the daughter was an adult.

The Law

Child support may be payable in respect of an adult child where that child remains a “child of the marriage” as defined by the Divorce Act, which provides as follows:

“child of the marriage” means a child of two spouses or former spouses, who, at the material time,

(a)   is under the age of majority and has not withdrawn from their charge, or

(b)   is over 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 necessities of life.

Decision

The court began by stating that caselaw has confirmed that full time attendance in a post-secondary educational program may qualify as “other cause” under the Divorce Act provision, which prevents a child from withdrawing from parental care. The court must be satisfied that the educational plan is reasonable in terms of the child’s abilities, having regard to the plans and expectations of the parents, and the needs and means of the child and the parents. The onus of proving that the child is dependent and unable to withdraw from her parents’ charge lies with the parent asking for support.

At one time, courts were reluctant to extend support beyond a first degree; however, that is no longer the case.

The criteria often used by a court regarding the question of dependency where a child is pursuing an education are:

  • whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies;
  • whether or not the child has applied for or is eligible for student loans or other financial assistance;
  • the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;
  • the ability of the child to contribute to his own support through part-time employment;
  • the age of the child;
  • the child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;
  • what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;
  • at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.

After reviewing the facts, the court determined that most but not all factors pointed towards determining that the daughter remained a child of the marriage for the purpose of extending child support while she was a university student. The court found that the mother had discharged the onus of proving that the daughter remained dependent and unable to withdraw from her parents’ charge and was a child of the marriage.

As a result, the court ordered the father to pay $792 per month to the mother as his contribution to the daughter’s post-secondary education until the daughter completed her university degree, provided that she maintained full time enrollment.

Get Advice

Separation and divorce are challenging for everyone involved.  When dealing with custody or access disputes, matters involving spousal and child support, the division of assets, and other family issues, emotions can be your worst enemy. Having an experienced family lawyer on your side can help you stay focused and resolve disputes as quickly and amicably as possible.

At Campbell Bader LLP our family team has collectively spent more than twenty years advising clients about family disputes, including those involving high net worth individuals or complex matters.

We value and incorporate collaborative family law principles into our practice, but we’re smart enough to recognize when that approach won’t work for you and we adapt our strategy accordingly. To learn more about how we can help you, contact us online or at 905-828-2247.