Friday, January 31, 2014

The Post-Secondary "Child:" Guidelines Need Not Apply

BY ANA KRALJEVIC, LAWYER, WISE LAW OFFICE

Once a child reaches his or her eighteenth birthday, the age of majority, the question of whether that child is entitled to support becomes highly fact-driven and contextual. 


As J. D. Payne and M.A. Payne note in their text, Child Support Guidelines in Canada, 2012,:
Once a child attains the age of majority, the child is no longer presumptively entitled to support. The onus falls on the applicant [in this case the mother] to prove that an adult child who is pursuing post-secondary education is entitled to support...
The first question that is normally asked is whether the child can still be considered a child of the marriage.  

Canada's Divorce Act defines a “child of the marriage” as:
The 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(a) is under the age of majority and who has not withdrawn from their charge, or 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.
Once it is determined that the child over the age of majority is indeed a “child of the marriage,” the next question becomes whether the Guideline table amounts are applicable, having regard to the “means, needs, and other circumstances of the child” as well as the “financial ability of each spouse to contribute to the support of the child.”

Pursuant to s. 3(2) of the Guidelines, the court must decide whether the usual Guidelines approach is appropriate and is permitted some discretion in departing from the standard Table amount:
AMOUNT OF CHILD SUPPORT 
Child the age of majority or over 
3(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is 
(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or 
(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
Wesemann v. Wesemann, a 1999 British Columbia Supreme Court ruling, sets out a four step test that determines the appropriate model to be applied for the support of a child over the age of majority:
Step 1: Determine whether the child is a "child of the marriage" as defined in the Divorce Act.
Step 2: Determine whether the approach of applying the Guidelines as if the child were under the age of majority is challenged. If it is not challenged, determine the amount payable based on the usual "Guidelines" approach.
Step 3: If the usual Guidelines approach is challenged, decide whether the challenger has proven that the usual Guidelines approach is inappropriate. If not challenged, the usual Guidelines amount applies. 
Step 4: If the usual Guidelines approach is inappropriate, it is necessary to decide what amount is appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
In Gagnierv. Gagnier, [2003] O.J. No. 2183, the court noted that if the circumstances of a child over the age of majority closely resemble that of a child under the age of majority, it is likely that that usual Guidelines approach would be appropriate.  Therefore, if the child continues to reside at home with one or both parents, earns little to no income, and is generally dependent on others for support, then the usual Guidelines approach will probably be followed.  However, if a child over the age of majority resides away from home in order to attend a post-secondary school in another city, or, that child earns a sustainable income and shows self-sufficiency, the usual Guidelines approach may not be applicable. 

In this case, the child, Matthew, was nineteen years old when he left home in Ottawa and began attending Queen's University in Kingston on a full time basis. He was found to be “a child of the marriage.” As the mother challenged the Guidelines approach, the judge proceeded to Step 3 of the test.  The judge found that it would be inappropriate to apply the usual Guidelines approach to a determination of child support for the following reason:
The costs of attending university in another city are significantly greater than attending university while living at home. In addition, Matthew does not have a job or a significant income.
In applying Step 4 of the test, the judge found: “Considering all the circumstances of this case, I find it is reasonable that Matthew contribute $7,000 towards his university expenses from employment income, scholarships, student loans or gifts leaving a balance of $8,700 to be apportioned between the parties.

In arriving at those two specific figures, the judge conducted a thorough analysis of Matthew’s reasonable needs, with respect to both post-secondary and personal expenses.  Given the judge’s finding that Matthew was a “bright, capable young man” he concluded that it was reasonable that he make a contribution towards his own education to help defray the costs of his education.  It was estimated that he could earn approximately $5,000 during the summer months through full-time employment and could apply for student loans to make up the rest.

The finding in this case is echoed in many other judicial decisions wherein the courts have found it appropriate for children to make reasonable contributions towards their education expenses. With the rising costs of post-secondary education and children taking longer to leave the nest, courts strive to create a balance that apportions the obligations of support fairly among all parties, and that includes the parents as well as the child. 

- Ana Kraljevic, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

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