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majority and who has not withdrawn from their charge, or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
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