In Ontario, the age of majority is 18- that is, a person of that age is in the eyes of the law an adult and has all the rights and responsibilities of an adult. That must mean that a parent’s obligation to pay child support for that child ends on that date, correct? Some people are surprised to learn that the legal obligation to support a child does not in fact terminate when that child reaches the age of majority.
The most common situation of course is when a child continues in school past the age of 18. There are two statutes in Ontario that give the Court the power to order support for adult children. The Divorce Act stipulates that a parent has a responsibility to pay support for a child who is over 18 but unable to withdraw from a parent’s change due to illness, disability or other cause. The Court have defined “other cause”, to include pursuing a post-secondary school education. The second statute, the Family Law Act, explicitly provides that the parent’s obligation to support a child continues when the child is enrolled in a full-time program of education.
Why support an adult child? The rationale for a child support obligation to begin with is that society expects parents to support children until the child can be self-supporting. In today’s economy, persons require more and more education to achieve that status. Therefore, the legislature and the Courts have imposed a continuing obligation on parents to support their children through post- secondary school, so that they can acquire the skills to be financially independent.
There are two components of child support in these circumstances:
- The Table support and
- s. 7 Expenses
The Table amount is a fixed amount payable to the other parent each month based on the payor’s income. The Child Support Guidelines provides the amount for an adult child is first determined by the Tables, as if the child is under the age of majority. There is a presumption that that is the correct amount. However, the presumption can be displaced if the Court feels that the amount is not appropriate; for example, if the child is away attending school during the school year, it may not be appropriate to pay the Table amount to the parent with whom the child only resides in the summer months.
The second component of child support are expenses under Section 7 of the Child Support Guidelines. This section provides that a child support order can include an amount to cover post-secondary education expenses such as tuition, books and residency. The guiding principle in this section is that the expense is shared in proportion to the parent’s incomes after deducting from the expense, the contribution, if any, from the child. However, unlike Table Support, the Court may consider the parent’s ability to contribute to that expenses There may therefore be an expectation that an adult child contributes to some extent to their university expenses. What is a reasonable contribution to their own expenses will depend on the resources of the child and the parents, the expectations of the family and the opportunities for the child to earn income. The analysis for child support for an adult child seeking support may therefore require disclosure of the child’s finances, in order to ascertain what is a reasonable contribution to these expenses. Depending on the financial circumstances of the parents, it may also be reasonable to require that the child apply for student loans.
Does this mean that a parent must support a child through any level of education, for any period, and for any program of education? No- there are limits. The following general principles have emerged from the cases deciding this issue:
- An adult child will usually be supported at least for his or her first level of post-secondary education.
- The Court will look at the child’s academic success- is the child applying his or herself? Given the grades of the child that the child is achieving, is the educational program realistic?
- The Court will look at the legitimacy of the child’s career path- an engineering degree is one thing, but post-graduate work in basket weaving obviously may not warrant continued support.
- As a child becomes more educated, the courts are less likely to award support and child is required to contribute more towards their educational expenses.
- If the parents are well educated it is more likely that the child will be supported to a similar level of education as the parents; and
- Payments can be made directly to the child; however, this is ordered in exceptional circumstances.
We are often asked by clients whether they should commit in a Separation Agreement to sharing of s. 7 university expenses in a fixed proportion. When the children are many years from starting university, we think it is best not to do so. A commitment made in a Separation Agreement will be enforced, unless there is some unforeseen change. The parent would then be committing his or herself to an expense of an unknown amount and an unknown duration. It is better to address that issue when the amount and duration of the expense is ascertained, and when the parties can concretely assess the child’s potential contribution to these expenses.
Child support for adult children after separation or divorce is not straightforward. If you have any questions with respect to this issue, please contact us at email@example.com to arrange a consultation.