10 April 2009

New Random Answers to Random Search Terms

I am able to review the search terms that lead people to my website. Every now and then, a search term is particularly unusual or suggests an answer that doesn't, and perhaps shouldn't, appear in the website. In this irregular feature, I will randomly reply to these search terms. New Random Answers will reappear at unpredictable intervals.

(Remember, the law that's being applied here is the law of British Columbia, Canada, and the laws of one jurisdiction are often very different from the laws of the next.)

>> paying for university after separation

>> child support college special expenses

>> do I still pay child support if the child is at university in another town

These questions all deal with one of the more difficult issues in family law, the payment of child support and special expenses for adult children who are studying at university or college.

The law behind this issue is simple. The Divorce Act and the Family Relations Act say that child support is payable for all kids under the age of majority, and for kids older than the age of majority of they are "unable to withdraw from the charge" of their parents. "Unable to withdraw" usually means that the child is unable to support him- or herself because of illness or disability, or because the child is engaged in post-secondary studies.

On top of the base payment of child support, parents are often also required to pay towards the cost of the children's "special and/or extraordinary expenses." Where an expense qualifies as a special expense under s. 7 of the Child Support Guidelines, both parents must contribute to paying the expense, and they contribute in proportion to their incomes. University and college costs almost always qualify as a special expense.

Here's where it can get a bit complicated.

Child Support

Normally, the table amount of child support is what gets paid for the support of an adult child.

Despite this, the court has the discretion to order that a different amount of child support should be paid, under s. 3(2)(b) of the Child Support Guidelines, if there is some objective reason why a different amount should be paid. In Hickman v. Hickman (2003 BCSC 116), the court talked about this issue at length and said that good objective reasons might include income from things like RESPs, scholarships, student loans, trust funds or inheritances, or disability payments. Whether the court will allow an exception to the tables will always depend on the circumstances of the case.

The person who receives the child support payments is usually the same person who has received them all along, the other parent. This can sometimes seem unfair, especially when the child is going to school in another city and lives in that city.

It is possible for a parent to pay child support directly to an adult child. This usally happens where the parents agree such an arrangement is appropriate; the court rarely makes orders to this effect. In general, the court will require that child support be paid to a parent as long as that parent maintains a room in his or her home for the child and the child stays there from time to time during school holidays.

Special Expenses

There are two conflicting lines of cases on the circumstances in which parents must pay the costs of post-secondary education and which costs the parents must cover.

The strict line of cases say this: post-secondary expenses should only be paid if the child is enrolled in a full-time course of study, and even then the course of study must be targetted to employment (unlike philosophy, for example my undergraduate focus).

The less uptight line of cases make post-secondary expenses payable whenever the child is enrolled in post-secondary studies, regardless of what the child is studying. Under these cases, children can drop out and return to school, or take a part-time course load or switch majors every year, and still have their expenses covered.

The costs that qualify as special expenses under the strict line of cases are limited to tuition fees, student fees and textbook costs. Other expenses may qualify under the less uptight line of cases, including for things such as residence, meal plans and the like.

The amount of the special expenses which the parents must contribute to is the net cost of these expenses, after all contributions from other sources have been applied to reduce the over all cost, such as student loans, scholarships, bursaries, fellowships, awards, grants and the like. Under the strict line of cases, children have been required to contribute earnings from their summer employment to these costs, obtain student loans, and provide proof that all available scholarships and grants have been applied for.

Additional information about child support and children's expenses, including a child support calculator and a special expenses calculator, can be found at www.bcfamilylawresource.com.