Post-Secondary Education and a Parent’s Child Support Obligations
There is a considerable amount of case law interpreting both the Divorce Act and the Family Law Act in respect of the eligibility for child support for adult children who are enrolled in post-secondary studies and the appropriate approach to calculating child support in those circumstances.
The Family Law Act provides as follows:
Obligation of parent to support child
31. (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.
Similarly, the Divorce Act states:
Child support order
15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.
“Child of the marriage” is defined as a child of two spouses or former spouses who, at the material time,
a) is under the age of majority and who has not withdrawn from their charge; or,
b) is 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 necessaries of life;
The courts have interpreted post-secondary studies to be one such “other cause”.
A finding of eligibility for support does not necessarily mean that the court will order support for a child who is enrolled in full-time post-secondary studies.
Even if support is ordered, the court can deviate from the amount set out in the Child Support Guidelines where the Child Support Guideline amount is “inappropriate” in view of the facts in a particular case.
After determining eligibility, the courts have a wide scope of discretion in determining the appropriate approach to calculating child support, the contribution by which the child should make to their support, if any, and the quantum of child support that should be paid by the parent, if any.
The following factors, outlined in Aubert v Cipriani, 2015 ONSC 6103, are relevant to the analysis of whether child support will remain payable through post-secondary studies and how it is to be calculated:
- The condition, means, needs and overall financial circumstances of the parents, and the effects that the order would have on them;
- The condition, means, needs and overall financial circumstances of the child, and the ability of the child to contribute to their own support;
- Whether the child has applied for or is eligible for student loans or other financial assistance, or has received any grants, bursaries or scholarships, and if so, the amounts received;
- Whether the child has a reasonable and appropriate education and career plan that will improve their future prospects for employment;
- The aptitude and abilities of the child, their level of maturity and commitment to their education, and how well they are performing in their studies;
- The cost of the program which the child has chosen as compared to other available options;
- The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress;
- The intention of the parties with respect to post-secondary education when they cohabited;
- Whether the child continues to reside with the recipient parent, or is living away from home for their studies; and,
- Whether the child is working on their first post-secondary degree or diploma or is engaged in further post-graduate studies.
The courts historically ordered payment of child support until the completion of the first college or university program. However, more and more students have pursued multiple degrees. The courts have adapted to the changing time, noting “a judge cannot be blind to prevailing social and economic conditions; a bachelor’s degree no longer assures self-sufficiency” (LePine v. LePine, 2015 ONSC 7341).
In application, the courts have extended the support obligation beyond the first post-secondary diploma or degree recognizing there is no defined cut-off date or age for child support.
In cases of a second or subsequent college or university degree, entitlement to child support for post-secondary education is dependent on the circumstances of the case.
As a general rule, parents of a child will remain responsible until the child has reached a level of education, commensurate with the abilities he or she has demonstrated, rendering the child capable of entry-level employment in an appropriate field (Aubert v Cipriani, 2015 ONSC 6103).
In the 2015 case of LePine v. LePine, 2015 ONSC 7341, the parties’ son had graduated with an undergraduate degree in June 2014. He was subsequently accepted into a Masters program as a full-time student in March 2014. He was required to extend his studies (taking stress leave) on account of depression during which time he remained in the care of his mother. The court ordered the father to continue to pay child support for as long as his son continued in the graduate program.
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In Blaschuk v. Bridgewater, 2005 CanLII 28787 (Ont. S.C.), Justice Quinn held with respect to ongoing eligibility during a second diploma or degree, the analysis should begin with an assessment of whether the educational path upon which the child is travelling or intends to travel is a reasonable one in all of the circumstances. He concluded that if the first program is significantly preparatory in nature for a further reasonable educational path, the court is more likely to impose an ongoing support obligation during the subsequent post-secondary program.
The theme which emerges from the case law is that support is likely to continue beyond a first diploma or degree if the payor parent has historically supported the child’s educational and career aspirations and has the ability to contribute to the child’s support and educational expenses.