Child support payments do not necessarily end when a child reaches the age of majority. Legislation states that adult children can still be entitled to support, which is often the case for adult children enrolled in a full-time education program. Importantly, there is no clear age at which entitlement to child support definitely ends. Therefore, what amount of support is appropriate for an adult child who is pursuing an education and may require financial support but is not residing at home?
Section 3(2) of the Child Support Guidelines addresses the issue of the appropriate amount of child support when the child has reached the age of majority. It provides that 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:
In Corby v. Corby, the parties’ children were enrolled in post-secondary education and did not reside at home. Both had attained the age of majority, so the judge had to decide whether to apply section 3(2)(a) or (b) of the Child Support Guidelines.
In the earlier case of Lewi v. Lewi, the Ontario Court of Appeal found that courts will presumptively apply the standard Child Support Guidelines amount and that section 3(2)(b) would only arise on an exceptional basis when it is inappropriate to use the standard approach. From that case, Justice Mitrow explained that when a child is over the age of majority, is attending a post-secondary educational institution, and is not residing at home during the academic school year, then it is not appropriate to use the approach set out in section (3)(2)(a) as “the table amount is premised on the assumption that the recipient parent is providing for the expenses of a child who resides with that parent”. Instead, an analysis should be conducted under 3(2)(b).
In Corby, the parties’ children lived with the respondent during the summer months. The judge found that calculating child support under the standard approach set out in (3)(2)(a) was not appropriate while they were attending college or university. However, the standard approach was appropriate for the summer months while they were at home and residing with the respondent. The Court determined that the applicant should pay the amount of child support set out in the Child Support Guidelines.
In Merritt v. Merritt, Justice Heeney examined the rationale for this approach. He explained that the table amounts of support were not designed for living arrangements when the child is living at another residence for much of the year. Additionally, “the table approach assumes that the recipient parent discharges her obligation by being physically in the same household and providing the family home and other amenities for the child. Where a child is at college, this assumption does not hold true. It therefore seems more appropriate to calculate the actual costs of providing for the needs of the child in his other residence.”
When a child reaches the age of majority, a support payor may seek to vary the support that they pay. In Trecroce v. Chorney, the judge explained that the simple fact that a child of the marriage attains the age of majority does not, on its own, amount to a material change in circumstances that warrants varying a child support order. However, the judge agreed that when the child is over the age of majority, attending school, and not residing at home, the approach in (3)(2)(a) may not be suitable. In this case, both parties claimed that there had been a material change in circumstances, and the judge agreed based on an increase in the respondent’s income and because their daughter was attending post-secondary education and was not living with the applicant.
Justice Stothart determined that child support should be determined under section 3(2)(b) as the Child Support Guidelines approach was more appropriate in “circumstances where the child continues to reside at home while they attend” school. This meant that the judge had to ascertain what amount of support was appropriate. In Coghill v. Coghill, because the child attended university and remained away from home for the summer period, the judge calculated the appropriate amount of support by determining the financial needs of the child and then deducting a reasonable contribution by the child. Once that amount was determined, the Court calculated an amount that each parent should contribute to support the child in proportion to their income. In Trecroce v. Chorney, the judge agreed that this approach to calculating support made sense.
The duration for which child support should be payable based on enrollment in post-secondary education was also in question. The daughter completed a seventh year of her program, which was necessitated by her poor performance in one year, requiring her to repeat that year. The judge had to determine if the parties should contribute to that year of her post-secondary education. The respondent argued that he should not have to pay for year seven of the daughter’s program. However, he was willing to pay for the sixth year, which was supposed to be the final year of her undergraduate program.
The judge looked at Geran v. Geran, a case from the Saskatchewan Court of Appeal, which stated that when deciding entitlement to support for an adult child, the court must weigh whether the child would be unable to pursue a reasonable course of post-secondary education without financial assistance of the parents. In Mengaldo v. Mengaldo, the Court set out a range of factors that were relevant to determining the eligibility of adult children for child support when attending post-secondary education, which included:
Justice Stothart found that courts cannot expect perfection when children are pursuing their education, especially since “issues such as mental or physical health may impact an adult child’s ability to complete a program in the time expected.” As such, one difficult year should not disentitle the child from support. The judge also took judicial notice that the daughter’s poor academic performance occurred during the first year of the COVID-19 pandemic when many programs were delivered virtually, and it was reasonable that students may have struggled in that environment. It was reasonable for the respondent to be responsible for child support for the additional year of the daughter’s program.
The skilled family lawyers at NULaw help clients work through issues resulting from separation and divorce. Whether you are making a claim for child support or are seeking to vary your obligations under an existing order due to a material change in circumstances, we are ready to assist you. We ensure that clients have ample information and honest advice to ensure that they are able to make informed decisions while moving forward. To schedule a consultation with one of our family lawyers, contact us online or call us at 416-481-5604.