Multiple Post-Secondary Degrees: When Does a Parent’s Child Support Obligation End?
By: Michaela Newman, Hughes + Bale LLP
Many people believe that an obligation to pay child support ends when a child turns 18 years of age, graduates high school, and/or obtains one post-secondary degree. In actuality, child support may be payable long after a child’s 18th birthday, high school graduation, or completion of one post-secondary degree.
Section 15.1 of the federal Divorce Act1 obligates a spouse to pay support for any or all “children of the marriage”. Pursuant to section 2(a) of the Divorce Act, a “child of the marriage” includes a child who is the age of majority or over and unable, by reason of illness, disability, or “other cause” to withdraw from parental charge. Courts have frequently interpreted this section to include children who are enrolled in a post-secondary education and therefore unable to withdraw from parental charge and become self-sustaining.2
The provincial Family Law Act3 provides additional clarity. Section 31(1) of the Family Law Act specifically enumerates a parent’s obligation to provide support, “to the extent that the parent is capable of doing so, for his or her unmarried child who is enrolled in a full-time program of education”.
The question then becomes, when does a parent’s obligation to provide child support terminate? Are adult children entitled to remain perpetual students and, if so, are parents obligated to financially support their children throughout their education?
An applicant for child support bears the onus of proving that the child in question is dependent and unable to withdraw from parental charge.4 There is no arbitrary age when a child who is pursuing an education ceases to qualify for support.5 As a child becomes older and better educated, the onus of proving dependency grows heavier. 6
Parental contribution to a child’s first post-secondary degree is generally uncontroversial.7 Historically, Courts were more reluctant to create orders for child support extending beyond one post-secondary degree. However, as asserted in Haist v. Haist, “this is no longer the case”.8 More recently, Courts have appeared more willing to award support where children are pursuing multiple post-secondary degrees. There is no automatic cut-off of dependency after one degree or four years of education. 9
Each case must be decided on its own facts. The case law has established criteria to assist with determining whether a child pursuing a post-secondary degree (or a second or third post-secondary degree) remains eligible for ongoing child support. These factors include, but are not limited to10:
The career plans of the child – i.e. whether the child has a reasonable and appropriate plan or is simply attending post-secondary education because there is nothing better to do;
The ability of the child to contribute to his or her own support;
The age of the child;
Whether the child is eligible for student loans or other financial assistance;Th
e child’s past academic performance – i.e. whether the child is demonstrating success in the chosen course of studies; and
What plans the parents made for the child’s education.
More recent case law has provided additional factors to consider in the analysis11:
In reviewing the child’s education and career plan, important factors include the nature and quality of the plan, the duration of the proposed study period, the prospects of the child succeeding in the program, the potential benefit of the studies, and the associated cost of the course of study;
The aptitude and abilities of the child, their level of maturity and commitment, and their sense of responsibility;
The means, needs, and other circumstances of the parents and the child;
The qualifications and experience of the child;
In considering what plans parents made for the education of their children, there should be consideration of the fact that reasonable parents are ordinarily concerned about treating each of their children comparatively equally; and
The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress. If a child is unwilling to remain accountable and has unilaterally terminated their relationship with a parent, it may be difficult to establish that such child has not withdrawn from parental care.
Some cases have placed considerable weight on whether a parent has the parental means to assist the child with their multiple degrees.12 In the case of Van Vroenhoven v. Van Vroenhoven, the payor father had an income over $200,000 per annum. The Court determined that the father had the financial means to assist his two children with their post-secondary education, including post-graduate degrees, and that the child should not be placed in a position of having to accumulate student debt when his parents had the financial means to assist him.13
In Easton v. Coxhead, the payor father’s income was over $250,000, and the Court held that both parents were “well able” to support the child’s second degree.14 High income earning parents appear to be more likely to incur an ongoing obligation to support their adult children.
In Oates v. Oates, the Court relied on the fact that the family had always placed a high value on obtaining higher education. Accordingly, the child was deemed to be “meeting the implicit wishes of her parents in pursuing a Masters degree”. Furthermore, the Court relied on the fact that the father had obtained a degree in dentistry and expressed a desire for his child to set similar goals for education.15
The “ultimate question” is whether the child is unable, without the direct or indirect financial assistance of the parents, to pursue a reasonable course of post-secondary education to the end of bettering the future prospects of the child.16 Where the answer to this question is “no”, it follows that a support obligation continues.
Consideration must also be given to the fact that a child may reside away from either party’s home while pursuing post-secondary education, as this may have further impact on a support obligation. Case law has established that the full quantum of support payable pursuant to the Child Support Guidelines may not be appropriate where the child is residing away from home throughout the school year.17
Ultimately, Courts retain wide discretion to assess each case by its particular circumstances and determine the appropriateness of an award of ongoing child support.
Michaela Newman practices family law with Hughes + Bale LLP.
She can be reached at:
Hughes + Bale LLP
25 Main Street West
Tel: (905) 523-5252
1 Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.)
2 Easton v. Coxhead, 2018 ONSC 4784 (S.C.J.), para. 64
3 Family Law Act, R.S.O. 1990, c. F.3
4 Haist v. Haist, 2010 ONSC 1283 (S.C.J.), para. 54 [Haist], citing Rebenchuk v. Rebenchuk, 2007 MBCA 22 (C.A.)
5 Jarzebeinski v. Jarzebinski, 2004 CarswellOnt 4600 (S.C.J.)
6 Penn v. Penn, 2014 ONSC 6321 (S.C.J.), para. 21, citing Renouf v. Bertol-Renouf, 2004 ABQB 885 (Q.B.)
7 Easton v. Coxhead, supra, para. 66
8 Haist, supra, para. 56
9 Penn v. Penn, supra, para. 26
10 Farden v. Farden, 1993 CarswellBC 619 (S.C.), para. 15
11 Easton v. Coxhead, supra, para. 68, citing Shelley v. Russell, 2012 ONSC 920 (S.C.J.)
12 For example, Van Vroenhoven v. Van Vroenhoven, 2009 CarswellOnt 1288 (S.C.J.); Easton v. Coxhead, supra
13 Ibid, para. 82
14 Easton v. Coxhead, supra, para. 69
15 Oates v. Oates, 2004 CarswellOnt 2878 (S.C.J.)
16 Shelley v. Russell, supra
17 Easton v. Coxhead, supra, para. 77