from the Ontario Family Law Blog
Post-Secondary Education and Child Support
Does child support end when a child reach age 18 years? Our lawyer Lynn Kirwin answers this question in detail.
The courts have recognized that financial dependency does not end upon a child turning 18. Under the Divorce act and the Family Law Act there is no upper age limit under which support automatically terminates. As a result, child support may extend beyond the age of 18 years of age.
“Child” under the Family Law Act for child support purposes includes an adult child who has not voluntarily withdrawn from parental control and is enrolled in a full time program of education.
“Child of the Marriage,” as defined by the Divorce Act, includes children over 16 who are still pursuing their education, including post-secondary education.
The Child Support Guidelines do not provide any termination of child support when a child reaches a certain age rather child support is payable for a child that is over 18 years old as long as that child is in full time school attendance.
Most courts have followed a flexible approach to the determination of what constitutes a full-time program of education. A full-time program does not necessarily mean full-time attendance at school. A child can be found to be enrolled in a full-time program of education while taking less than a full course load, so long as his or her participation is meaningful and consistent with the program’s purposes and objectives. It is not uncommon for university students to require an additional school term to complete the necessary credits to obtain a degree. This does not necessarily disentitle them to support under the Family Law Act. They are still in the process of completing a full-time educational program. A full-time educational program does not necessarily equate to requiring a full-time course load each term. The additional time that a student might have available to them to work part-time (as a result of not having a full course load) can be a factor in determining whether the guideline amount is appropriate and what the appropriate amount of support should be. The entitlement to support is not automatic. The court must be satisfied that the educational plan is reasonable in terms of the child’s abilities; that it meets the plans and expectations of the parents in regard to the child’s post-secondary education; and that it is within the needs and means of the child and the parents.
A hiatus in studies does not necessarily end the obligation to pay child support. A child who has withdrawn from his studies may be reinstated to his support entitlement by bringing himself back within the definition of “Child of the Marriage” under the Divorce Act or “Child” under the Family law Act.. If the child was enrolled in a transitional program then the parent may not be relieved from paying support. For example if there is a transition time where the child finishes high school and starting university and he/she continued in school to upgrade high school credits and worked part-time then this would constitute a transitional program and Child Support Guidelines Table amount may be appropriate.
In cases involving child support for second and third degrees, the court will consider the financial circumstances of the family, the ability of the child to contribute to his post-secondary education expenses, the child’s education and career plans, the child’s age, the child’s academic performance, the family’s educational expectations, the parents involvement in the decision making process, the accountability of the child, and the extent to which the program prepares the child to become financially independent.
Most courts now find the guideline amount inappropriate when a child attends university out-of-town and only returns home during the summer and school breaks. Although each case must be examined on its own facts, most courts will order the full table amount in the months the child is living at home with a lesser amount when the child is away at school. Providing the court with evidence of the costs required to maintain a home for a child who is away at university is important in cases of this nature.
The Child Support Guidelines provides that for children over 18 years the table amounts are presumptively applicable unless the court considers that approach inappropriate. Where a child attends university away from home and only spends the summer and other vacation times with a parent, some reduction of the table amount of child support is used and the child’s post-secondary expenses are treated as extraordinary expenses. The expenses are shared by the parents with some contribution by the child. A base amount of support recognizes the primary resident’s obligation to pay for the upkeep of a home used by the child during vacations and the summer months.
In addition to basic child support, the court can order the sharing of a child’s post-secondary education expenses. Such expenses include reasonable costs for tuition, accommodation, meals and groceries, cellphone, books, etc.. The court will take into consideration that adult child has an obligation to contribute towards their own costs of study. The amount of a special expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense the contribution, if any, from the child. Most courts are reluctant to allow the payor parent to avoid child support obligations by requiring that the child rely on student loans, since student loans are just costs that must be repaid when the child finishes school.
A student loan is not a “benefit” within the meaning of the Child Support Guidelines. Student loans are not to be equated with bursaries, grants, or scholarships. The adult child should not be inordinately saddled with a huge student loan, particularly in light of each parents’ financial circumstances. As well, the courts will not require a student to contribute all of his or her earnings to their post-secondary expenses and may order a certain percentage of contribution of these earnings towards their post-secondary expenses.
It is also important to note that, despite the terms of a separation agreement that support terminates when a child completes his or her first undergraduate degree or becomes 23 years of age, the court may determine it is not bound by this term. Child support is the right of the child and cannot be bargained away by a recipient parent to the detriment of the child.
Lynn Kirwin has authored a number of books dealing with family law issues. Lynn uses her academic aptitude to be a strong advocate for clients going through a separation or divorce. She also represents children in divorce on behalf of the Office of the Children’s Lawyer and privately. Lynn can be reached at Lynn@GalbraithFamilyLaw.com or by calling her at 705 727-4242.
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