Do I Have to Provide Support for an Adult Child Attending School?

Introduction:

Sometimes, I have cases where clients ask me as to what to do when they’ve an adult child who is studying and the question is whether or not they need to provide support for such an adult child.

Obviously there are a number of factors that go into such an analysis as to whether or not a parent must pay for such an adult child.

In 2019, a case from the Superior Court analyzed exactly this point. The question  was what the applicable factors were and if the Mother should be paid Ongoing Support for the child who was Enrolled in Law School.

[84] In Kim v. Kim, 2019 ONSC 4685, Fowler-Byrne J. summarized a number of authorities that set out the factors a court must consider in regard to support for an adult child who continues in school. She stated:

11 The factors to consider when determining whether a child over the age of majority who continues their education remains a "child of the marriage" is well laid out in the decision of Menegaldo. At para. 157, Chappel J. states that the fact that an adult child is still undertaking educational studies may constitute "other cause" within the meaning of section 2(1) of the Divorce Act, but it is not in and of itself determinative of the issue of entitlement to child support. The entitlement analysis is a fact-driven undertaking in each case. The case law indicates that in order for the pursuit of post-secondary education to constitute "other cause" within the meaning of section 2(1)(b) of the Divorce Act, the court must be satisfied that the educational plan is reasonable in terms of the child's abilities, the plans and expectations of the parents in regard to the child's post-secondary education, and the needs and means of the child and the parents. 

Chappel J. adopted the reasoning of the Saskatchewan Court of Appeal in Geran v. Geran, 2011 SKCA 55, which indicated that the ultimate question in deciding the issue of entitlement in these circumstances 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."

12 Chappel J. then outlined a number of factors at para.157 which should be considered in answering these questions. The considerations are as follows:

 a) 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.

b) Whether the child has applied for or is eligible for student loans or other financial assistance, or has received any bursaries or scholarships, and if so, the amounts received.

c) The ability of the child to contribute to their own support through part-time employment.

d) Whether the child has a reasonable and appropriate education and career plan, or whether they are simply attending an ongoing educational program because there is nothing better to do.

e) 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.

f) The child's academic performance, and whether the child is demonstrating success in the chosen course of studies.

g) The age, qualifications and experience of the child.

h) The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility.

i) Whether the child is performing well in the chosen course of studies.

j) What plans the parents made for the education of their children, particularly where those plans were made during cohabitation. In considering this factor, the court should bear in mind that reasonable parents are ordinarily concerned about treating each of their children comparatively equally.

k) The means, needs and other circumstances of the parents and the child.

l) 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, or has unilaterally and without justification terminated their relationship with a parent, they may have difficulty establishing that they are unable to withdraw from parental charge based on a reasonable course of post-secondary education.

13 It is not necessary to establish all of the factors set out above to show that the child remains a "child of the marriage": Menegaldo, at para. 158.

[85] Because Jessica worked for about a year and a half before returning to school and because she is seeking a second degree, the factors that a court must consider in determining her entitlement to support are different from those for a child working towards their first degree (Menegaldo v. Menegaldo, 2012 ONSC 2915 & Rebenchuk v. Rebenchuk, 2007 MBCA 22). Further, the obligation of a parent to pay child support towards a child’s second degree is “…very much subject to the parents' ability to pay (Decaen v. Decaen, 2013 ONCA 218, at para. 58).

[86] Here, even if I do not accept the father’s argument of a diminished income, his baseline income is $20,200 per year, which is below a full-time minimum wage. It rose to about $23,000 in 2018, which is still below a full-time minimum wage in Alberta, which increased to $15 per hour on October 31, 2018 (see: https://www.alberta.ca/minimum-wage.aspx). On the other hand, Jessica earned $35,048 in 2017, about 75% more than that the father’s baseline income for that year.

The judge in this case did not make an order that support be paid. Instead, he made the following order:

2. If the mother is claiming support for Jessica, I will require her to serve on the father and file with the court within 45 days: i. proof of Jessica’s enrollment in law school,  ii. details of the payment of the costs of law school,  iii. details of the time that Jessica has spent in her home since she commenced school,  iv. Jessica’s tax returns and notices of assessment for the years 2017 onward,  v. details of the contributions made by each of the mother and Jessica to her school costs, details of any scholarships or bursaries, and any other evidence upon which she relies on to claim support for Jessica from September 2017 onward. 

Blog Analysis:

Clearly the factors given above are all complex and require careful analysis and thinking before approaching the court. At Shankar law, we will do a thorough job of undertaking such an analysis for you.

Each case is different and it’s fact driven. However, in the case such as where an adult child has to go to school and needs support, I have no doubt that any Court would very carefully look at the factors described here.

At Shankar Law, we are happy to assist and guide you through whatever challenges you have in your spousal and matrimonial life. We work primarily in three counties: Huron, Bruce, and Grey and span several cities (Southampton, Kincardine, Goderich, Wiarton, Hanover, Dundalk, Walkerton, Meaford, Markdale, Chatsworth), through our two locations in Port Elgin and in Owen Sound.