The Kids Are Going to University – Who’s Footing the Bill?

Family Law

Separating from your spouse means that paying your child’s tuition, once a question to be made privately between you and your partner, is now a question for the Court. This may be strikingly unfair for some. You know your child best, and you know whether university is worthwhile for them, or merely a way of prolonging their entrance into the workforce. If your child is clearly destined for a career in the trades, do you have to pay for their liberal arts degree? In this entry I’ll tell you what the law says about that question.

Step 1: is the Child still a Dependent?

Crucially, paying your child’s tuition will only be compulsory if your child is still a “child of the marriage” as defined by the Divorce Act (Federal legislation), or simply a “child”, as defined by the Family Law Act (BC legislation). These terms have the same definitions, and are similar to the more colloquially used term “dependent”. The precise definition, as provided by the Divorce Act, is as follows:

child of the marriage means a child of two spouses or former spouses who, at the material time,

  • is under the age of majority [which is 19 or older in BC] and who has not withdrawn from their charge, or
  • 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; (enfant à charge)

Since many young adults start university right out of high school, when they are 18, they will be presumptively considered dependents for their first year or so of university education (leaving aside the exceptionally rare circumstances when they have “withdrawn from their parents charge”).

Once they reach 19, whether they are a dependent is a fact-based and discretionary decision. To cut to the chase, a child pursuing their bachelor’s degree or a technical degree right out of high school will usually be considered a dependent. But there may be exceptional circumstances that mean your child is now fully independent and you don’t have to pay their tuition.

When making this determination, the factors to consider are called the “Farden factors”, after the case Farden v. Farden, 1993 CanLII 2570 (BC SC). They are:

  1. whether the child is in fact enrolled in a course of studies and whether it is a full-time [generally 5 courses or more] 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; and
  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.

No single one of these factors is determinative, and just because one of these factors favours your child being independent, it does not mean that you don’t have to pay tuition. Heed the words of the BC Court of Appeal in W.P.N. v. B.J.N., 2005 BCCA 7 (CanLII) [WPN]:

[19]   … this Court made it clear that there does not have to be evidence on all of the [Farden] factors in order to establish that a child is a “child of the marriage” because she is pursuing an education. Nor should this list be considered to be exhaustive of the relevant factors.

Case Study: Nordeen v. Nordeen

In Nordeen v. Nordeen, 2013 BCCA 178 (CanLII), Ms. Nordeen sought payment for her child Alison’s tuition both from her first husband, Mr. Nordeen (Amanda’s biological father), and from her second husband, Mr. Ouellette (Amanda’s stepfather). On considering the question, the lower court considered and applied the Farden factors as follows:

  1. Amanda was only enrolled in a course of studies for a few days after October 29, 2011 (the date on which Mr. Ouellette alleged she ceased to be a child of the marriage) before she withdrew for the term. From January 2012 to April 2012, she enrolled in only part-time studies. This was due, in part, to medical considerations.
  2. Amanda had not sought student loans or other outside assistance. The judge considered that it was incumbent upon her to do so before looking to Mr. Ouellette for assistance.
  3.  Amanda’s career plans were “somewhat inchoate”.
  4. Amanda was working and planned to continue to work part-time. Her expenses were low and could be met by contributions from her mother and Mr. Nordeen, and from her own income. She did not need support from Mr. Ouellette.
  5.  Amanda was, at the date of the hearing, 19 years old. She is now 20.
  6. There was no evidence that Amanda had met with any particular academic success. As of the date of the hearing, her courses had consisted primarily of upgrading high school courses.
  7. Ms. Nordeen and Mr. Ouellette made some plans for Amanda’s continued schooling, particularly involving RESPs, but the amounts contributed had been substantially diminished by the date of the hearing. Ms. Nordeen and Mr. Nordeen had, by the time of the hearing “taken over involvement in [Amanda’s] ongoing life planning.”
  8. Amanda had had very little contact with Mr. Ouellette since Ms. Nordeen and Mr. Ouellette separated in January 2008, when Amanda was 15. On the other hand, she had daily contact with Mr. Nordeen.

The lower Court’s decision, upheld at appeal, was that Amanda continued to be a dependent of Mr. Nordeen, but ceased to be a dependent of Mr. Ouellette. The judge considered the fact that Amanda had very little contact with Mr. Ouellette for several years, whereas she continued to have a close relationship with Mr. Nordeen, as determinative to his decision.

Step 2: if the Child is still a Dependent, what do I have to Pay?

If you’re reading this, you are likely aware that there are two types of child support (1) basic child support, and (2) special and extraordinary expenses. Basic child support is a monthly payment determined by the income of the non-custodial parent, or the incomes of both parents in the case of shared parenting. In principle, basic child support reimburses the primary parent for the day-to-day costs of caring for a child. Special and extraordinary expenses are particularly large costs that cannot be covered by basic child support. These expenses are paid by each parent in proportion to their incomes.

Expenses related to post-secondary education (tuition, but also books, housing, meal-plans, and other necessities) are generally considered special and extraordinary expenses. Therefore, you will split this cost with the other parent proportionately (i.e. if you make $60,000 and they make $40,000, you will pay for 60% and they will pay for 40%).

As an important caveat, there is an expectation that the child make reasonable efforts to contribute to their own education expenses, including pursuing part-time work if feasible, and obtaining any available grants, bursaries, and student loans. Any contributions made by the child to their tuition from these sources will be adjusted for when determining the amount the parents must pay. There shouldn’t be any double payment for those expenses if they are already covered.

Assuming your child is living on campus, there should not be basic child support. Since your child is neither living with you nor the other parent, neither of you are paying for the day-to-day expenses covered by basic child support. Of course, this will change if your child resides with you or the other parent while attending university. In that case, basic child support will likely be payable.

Step 3: and what about a second or third degree? Do I have to pay for that too?

Please refer to Step 1. There is, perhaps unfortunately, no absolute cut-off for when a child ceases to be a dependent. To answer that question you will still have to apply the Farden factors. Of course, as the child gets older they will be increasingly likely to cease being a dependent, but this will always require fact-specific analysis.

As the Court of Appeal found in WPN, while upholding the lower Court’s decision to find that the child’s medical school was a special and extraordinary expense:

[28]   In this case, the evidence is that the father has sufficient income to support J.’s achievable, realistic and legitimate educational goals, and there is no evidence that anything about his age or health would limit his ability to assist her. Nothing in the separation agreement precluded post-graduate education.

[29]   There is no general principle that a child seeking a second degree does not qualify for child support. As stated by Freeman J.A. for the Nova Scotia Court of Appeal in Martell v. Height (1994), 1994 NSCA 65 (CanLII), 3 R.F.L. (4th) 104 at para. 8:

There is no arbitrary cut-off point based either on age or scholastic attainment, although as these increase the onus of proving dependency grows heavier.

For more information regarding separation and paying for your child’s tuition or any other family law issue, please contact our Family Law Practice Group.

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