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Earlier this year, an Ontario court explored the question of whether child support should remain payable for adult children who are pursuing a PhD, and, if so, how that support should be calculated. The court determined that, given the specific circumstances of this family, continued child support would not be unreasonable.
What Happened?
The family in question was a high-income family that valued academic achievement. The father is a university professor living in Ottawa, and the mother is a doctor living in Drummondville, Quebec. They were married in 1993, had two children, and ultimately separated in 2001 before divorcing in 2004. After the separation the parents both lived in Ottawa and had joint custody for many years.
The mother moved to Drummondville in 2010, and child support obligations were imposed in 2011. According to the child support order:
- The mother was to pay the father child support for both children, amounting to $4,000 per month;
- The children’s extraordinary expenses (including tuition, books, etc.) were to be shared in proportion with the parties’ income, with the mother paying 82% and the father paying 18%.
In 2016, the mother filed a motion seeking an order terminating the support for each child on the date on which they completed or will complete a second post-secondary degree.
The Original Court Findings
The findings of fact that were made when the support obligations were first ordered were important when the court considered the mother’s motion for termination of support.
The original judge had noted that the mother had always been the primary income earner and had paid all the children’s daily expenses (except for those incurred in the weeks they lived with the father). Once the mother moved to Drummondville, the children were deemed to be in the primary care of the father and the mother was obligated to pay child support.
The mother’s income was over $580,000, and the father’s income was close to $130,000. The court had determined that the child support tables were inappropriate, and support was instead determined with regard to the condition, means, needs, and other circumstances of the children.
The support in the amount of $4,000 was intended to cover “indirect expenses” such as housing, utilities, groceries, and transport while the children were living at home. Part of the monthly support was also intended to cover additional expenses such as clothing, meals outside of the home, cell phones and internet, and vacation. A detailed budget was the basis for the support order.
The original judge held that the only extraordinary expenses were the costs of the younger child’s private school fees, since the older child was attending university at the institution where his father was a professor (University of Ottawa) and his tuition was free. Significantly, the original judge had declined to quantify the extraordinary expenses for future years and likewise declined to specify a termination date for child support.
Changes Since the Original Order
Since the original child support order, the older child (by then an adult) had completed a bachelor and master’s degree at the University of Ottawa and had been admitted to a prestigious doctoral program at the University of Toronto, where he began to live and study in September 2015.
The incomes of both parents increased. However, the mother argued that her income fluctuates, and that her income would be lower in 2017.
Varying Child Support Orders
Under s. 17(4) of the Divorce Act, in order to vary child support under a divorce judgment, the court must be satisfied that there has been a “change of circumstances as provided for in the applicable guidelines” (i.e. the Federal Child Support Guidelines).
In this case, the original judge had decided that the child support tables were not appropriate and instead had made an order based on what she believed was a reasonable budget for the children at the time. Tuition and other education costs were deemed to be extraordinary expenses.
Section 14 of the Guidelines states that where the amount of child support in the previous order was calculated other than by using the child support tables, any change in the “condition, means, needs or other circumstances of either spouse or of any child who is entitled to support” constitutes a change in circumstances.
In this case, the motion judge found that:
…there have been significant changes in circumstances. Jeanne completed high school and began university. She has completed a first degree and is well on her way to completing her master’s. Étienne completed his first and second degrees and is now enrolled in the PhD program. Étienne moved to Toronto to pursue his education. The incomes of the parents have changed and the incomes of the children have changed. All of these changes justify a review of child support. This is not an invitation to re-open issues already decided or to review support de novo. The variation should only be the variation that is required by the change in circumstances since the making of the order.
Child Support and Post-Secondary Education
The motion judge noted that it is well-established that attendance in post-secondary education will satisfy the test that a child is not able to support themselves and justify continued support, however, it is rare for courts to find that the obligation to pay that support continues once the child has earned two post-secondary degrees. The motion judge noted that:
The question however is not whether there is a magical bright line cut-off after one or two university degrees. There is not. The question is whether the parent seeking support remains financially responsible for the adult child and whether or not that is reasonable under all of the circumstances. The key consideration is dependency.
The motion judge went on to say:
This is a family with high academic expectations, highly intelligent and academically motivated children and a combined parental income approaching a million dollars per year. What may be reasonable for these children and these parents may be quite different from a situation where the incomes are more modest and the academic potential of the children less dramatically evident.
The factors that are often applied in deciding whether child support should be continued are known as the “Farden factors” and are:
- 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;
- whether or not the child has applied for, or is eligible for, student loans or other financial assistance;
- 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;
- the ability of the child to contribute to his own support through part-time employment;
- the age of the child;
- the child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;
- what plans the parents made for the education of their children particularly where those plans were made during cohabitation;
- at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated their relationship from the parent from whom support is sought.
Final Support Order
In this case, the evidence was clear that this was a family that could afford post-secondary education for their children, and that the children had both excelled academically, as they had been encouraged and expected to do.
While the mother claimed that the children had distanced themselves from her and she suspected that they only maintained the relationship to justify ongoing financial support, it could not be said that the children had repudiated the relationship.
The motion judge noted that once the older adult child started living in Toronto all of his reasonable living expenses should be regarded as extraordinary expenses and he should be applying all of his own money against those expenses before asking his parents for any contribution. The monthly support amount should therefore be reduced (but not eliminated).
If and when the younger adult child left home, the same formula would apply, and the monthly support payments would also be replaced by a proportionate share of her own budget.
Support was to continue with the caveats outlined above.
Child support can be a legally challenging and emotional issue during a separation or divorce. If you have questions about child support, please contact experienced family lawyer Jason P. Howie, online or at 519.973.1500.
