As we approach September, the question is arising
more and more frequently in my practice about when a child is still considered
to be a dependent ‘child’ and in need of financial support if they are
attending college or university and not living
at home. As a mother of three ‘children’, ages 19, 22 and 24, all of
whom are pursuing post-secondary studies, I can tell you first hand that there
is no clear point at which children are no longer in need of financial aid from
their parents. The case of Kiristmanson v. Kristmanson 2012 BSC 1750
is helpful in this regard.
From the Court’s perspective, payment of child
support for a child over the age of majority depends on the facts of each
particular case.
In six Canadian provinces, the age of majority is 18: Alberta, Manitoba, Ontario, Prince Edward Island, Quebec, and Saskatchewan. And, the age of majority is 19 in the four remaining provinces and the three territories: British Columbia, New Brunswick, Newfoundland, Northwest Territories, Nova Scotia, Nunavut, and Yukon.
The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)
provides the following definition for the term "child of the
marriage" where a person is over the age of majority:
“child of the marriage” means a child of two spouses or
former spouses who, at the material time,
. . . 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;
Case law has
interpreted "other cause" to include an adult child in attendance at
post-secondary schooling.
The seminal case of
Farden v. Farden (1993), 2570 BCSC tells
us that the onus rests upon the applicant to establish that the person for whom
a support order is sought is still a child within the meaning of the Act. Master Joyce, as he then was, provided the following
helpful analysis for determining the status of an adult child:
Whether or not attendance in a post-secondary institution
will be sufficient cause for a finding that the child is still a "child of
the marriage" requires examination of all of the circumstances. It
is not a conclusion which follows automatically from proof of attendance at the
institution . . . In my view the relevant circumstances include:
(1) whether the child is in fact enrolled in a
course of studies and whether it is a full-time or part-time course of studies;
(2) whether or not the child has applied for or is
eligible for student loans or other financial
assistance;
(3) the career plans of the child, i.e. whether the
child has some reasonable and appropriate plan or is simply going to college
because there is nothing better to do;
(4) the ability of the child to contribute to his
own support through part-time employment;
(5) the age of the child;
(6) the child's past academic performance, whether
the child is demonstrating success in the chosen course of studies;
(7) what plans the parents made for the education
of their children, particularly where those plans were made during
cohabitation;
(8) at least in the case of a mature child who has
reached the age of majority, whether or not the child has unilaterally
terminated a relationship from the parent from whom support is sought.
In Neufeld v. Neufeld, 2005 BCCA 7 (CanLII),
the Court of Appeal expressly adopted the above passage from Farden as
being a non-exhaustive list of considerations which apply in cases where the
Court is being asked whether support is payable for an adult child. In Neufeld,
the issue was whether support was payable for an adult child pursuing a medical
degree. One of the important factors
considered by the trial judge was that the decision to pursue this level of
education was in keeping with the family’s pre-separation plans for their
daughter.
The cases tell us that there is no arbitrary cut-off
point for child support for adult children, based either on age or level of
education. We know that there is no statutory
prohibition against support for an adult child seeking a second degree; determination
depends on the facts of each specific case, and Neufeld reminds us there is not a specific or primary piece of the Farden inquiry which will determine the
result in any given case.
So, the answer to the question, "Is child support payable for a child over the age of majority who is attending college or university?", is, as with most family law matters, it depends on the facts of your case.
