WHY ‘DELAYED ADULTHOOD’ CAN MEAN CONTINUED CHILD SUPPORT. FAMILY LAW,
Even after 18, a child may still be entitled
We l i ve in a time of delayed adulthood, in which children over the age of 18 are either living with or are dependent on their parents for longer and longer, especially when it comes to the costs of post-secondary education.
If a family is intact, the parents together with the child can fashion whatever financial arrangement suits them as a family. But that isn’t always the case for separated parents, who are obliged to provide support to their adult children given the definition of “child of the marriage” under the Divorce Act. ( Children of common law couples have different rights, depending on the legislation in place in each province. )
If the parents can’t agree, judges can be asked to determine things like whether a child is entitled to support for post- secondary education, if the program is appropriate, how much support should be paid and for how long.
For a child to be entitled to support after age 18, that child must still be a “child of the marriage” and “unable, by reason of illness, disability or other cause, to withdraw from (the parent’s) charge or to obtain the necessities of life.” In addition, all decisions about children are based on the court’s view of what is in the best interests of the child.
While it is not specifically included in the definition of “child of the marriage,” postsecondary education is most common “other cause” that gives rise to continuing child support.
Under the Divorce Act, one of the former spouses, and not the child herself, must apply for continuing support for the child’s postsecondary education.
To do so, the applicant parent must show that the child cannot “withdraw from the parent’s charge.” Generally, this means that the child must be enrolled in school before the payer parent is on the hook.
In addition, in order to be eligible, the payer parent must also have information about the child’s educational program, including the cost of tuition, books, and proof of registration. As the child’s studies continue, additional information must be provided to the payer parent, usually including evidence of courses completed and dropped, and up- to- date transcripts. The child must also explain why the educational plan is a reasonable one.
As with most support issues in family law, the contentious issue is how much, and for how long. And, as with other support issues, the answer is: It depends.
Generally, if a child is living at home while attending post-secondary school, table child support is paid to the parent with whom the child lives, and tuition, books and transportation to and from the program are shared in proportion to the parents’ incomes. Table child support is prescribed under the child support guidelines, and is based only on the payer spouse’s income. The higher the income, the higher the prescribed support.
If a child is not living at home while attending a postsecondary school, parents are expected to share the child’s post- secondary expenses in proportion to their incomes. This includes their residence and day-to-day expenses such as clothing and entertainment.
Some contribution from a child’s summer employment or part- time work is usually required. A child who is working is often expected to contribute about 75 per cent of what she has earned to her expenses. RESPs and trusts which exist and benefit the children are called upon first before the parents are obliged to contribute.
The parents’ means are also relevant. In Selig vs. Smith, t he Nova Scotia Court of Appeal said that “where the divorced parents’ total income approximates $ 100,000 … an adult child will be expected to borrow to finance post-secondary education.”
This is not to say that this obviates any contribution from the parents. The judge in Rotto vs. Rotto said in 2014, “parental contributions and student loan debt ( are) necessary components of ( the) package … neither has priority in the sense that either must be exhausted before the other is taken up.”
In answering the question of how long separated parents must continue to contribute, again the courts look at the reasonableness of the child’s educational plan.
Generally, the courts do not interfere with the first diploma or degree choice of a child. A child is obliged, however, to pursue their studies with reasonable diligence. Where a child has learning disabilities or has emotional or psychological issues, the courts tend to allow more latitude in the length of time to complete the course.
A frequent hot- button issue is whether parents have to help with postgraduate or professional degrees.
The courts have acknowl edged t hat pursuing a good career often requires a second degree. Considerations i nclude the child’s career plans, the family’s expectations for the child’s plans when they were still married, and the education and means of the parents. In J.C. vs. A.M.M., where the parents were successful lawyers, a 23- year- old daughter in her first year of medical school was entitled to continuing support.
The older the child, the heavier the onus for the child to show aptitude for the chosen career plan. In Lo vs. Lo, where a child’s marks and LSAT score were too low to get into a Canadian law school, she attended law school in Hong Kong with parental support.
When she withdrew from that program without good reason (after paying $31,000 toward her first year) and then started a master’s of education in England, at $44,000 year, suggesting she would work in “education reform in Hong Kong,” the judge did not award further support, calling the plan “illfounded.”
Parents often enter into separation agreements with termination dates for child support, such as a specific age or when the child’s finished her first degree or diploma.
However, given the openended language of the Divorce Act, including the ability of the court to have the final word on the child’s best interests these provisions are not binding.