Do parents have an obligation to pay child support for their children over the age of majority?
Child support is payable for children under the age of majority, which is 19 years of age in BC, unless that child has withdrawn from their parents’ charge. However, for children over the age of majority, it is not as straightforward.
Under the Divorce Act, a child over the age of majority remains a child of the marriage for the purposes of receiving child support if that child is under their parents’ charge but unable, by reason of illness, disability, or other cause, to withdraw from their charge or to obtain the necessities of life. Where it is not a case of disability or illness, but rather “other causes” it is usually a case of the child attending post-secondary schooling.
The recent case of Lamont v. Johnson, 2016 BCSC 366 provides a review of when child support is payable for children over the age of majority who are in post-secondary or returning to post-secondary education.
In Lamont, the parties had two children, O., who was 23 years old, and N., who was 20 years old.
O. had ceased being a child of the marriage four years prior when he discontinued post-secondary studies and worked full time. However, then O. returned to post-secondary to pursue a four year architecture program and stopped working. The mother was seeking to reinstate child support for O. now that he had returned to school.
Once a child is over the age of majority, the parent seeking payment of child support bears the onus of proving that the child remains a child of the marriage. The factors the court considers in whether a child over the age of majority is a child of the marriage include:
- whether the child is in fact enrolled in a course of studies on a full time or part time basis;
- whether the child has applied for, or is eligible for, student loans or other types of financial assistance;
- whether the child has a plan of pursuing educational goals that are related to a career or other reasonable objectives;
- whether the child can contribute to his own support through part time work;
- the age of the child;
- the child’s past and current success in the education program;
- the parents’ plans for the children’s education, particularly if the plans were made during the marriage; and
- whether the child has unilaterally terminated his or her relationship with the parent from whom support is sought.
In O.’s case, the court took into account the fact that O. had not been a child of the marriage for over four years. There was a lack of evidence about how much income O. had earned during the period when he was working full-time. Also considered were the reasons for selecting his course of study and his career plans. And finally, the extent to which O. had access to student loans or scholarships and part time work. The court was unable to assess whether O.’s career plans and course of study were reasonable and realistic, and to what extent O. could reasonably be expected to contribute to his own support and education.
The court declined to find that O. was a child of the marriage.
On the other hand, it was not contested that N. remained a child of the marriage. N. was in her second year of university and also a high level athlete in Ultimate Frisbee. Pursuant to a previous court order, the father was still paying a set amount of basic child support and section 7 expenses for N. The mother was seeking an order that the father contribute to N.’s post-secondary and athletic expenses above the set amount of section 7 expenses.
Section 7 expenses are over and above the basic amount of child support. They are defined in the Child Support Guidelines and include “special expenses”, such as post-secondary education, and “extraordinary expenses”, such as extracurricular activities. Parties typically share section 7 expenses in proportion with their incomes taking into consideration any contribution from the child.
Whether a special expense or an extraordinary expense, the expense must be reasonable and necessary. The relevant considerations include whether the expenses are necessary in relation to the child’s best interests, and reasonable having regard to the means of the spouses, the child, and to the family’s spending pattern prior to separation.
In N.’s case, the court found that both parents had limited financial resources, and while they were sacrificing time and money on the extracurricular activities for the children during the marriage, “What may have seemed subjectively reasonable to the parties when the marriage was intact may not be objectively reasonable now, in their changed circumstances”. In addition, while the child, N., did earn a small amount each summer, during the school year, she was taking an 80% course load and not working, as many students of limited means must. N.’s athletic endeavours were a luxury in the circumstances of the family.
As a result, the court allowed the tuition expense as a section 7 expense, but found that N. should contribute to 1/3 of her own tuition, either through work or student loans, and the remaining two thirds were to be paid by the parents in proportion to their incomes, up until the expected date of N.’s graduation. The court did not allow the Ultimate Frisbee expenses as a section 7 expense.
If you are facing a child support issue, please contact one of our Vancouver or Langley family law lawyers.
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This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.