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Divorces and separations can become more difficult when there are children involved. Of course, there’s the emotional stress that are involved in such cases, but children can also cause additional financial issues to arise, particularly those involving child support. Typically, a child-support paying parent has to pay support so long as the child is a “child of the marriage” as defined (in this case, in Alberta) under the Divorce Act. A child of the marriage means the child is dependent on his or her parents, which is normally the case until the child reaches the age of majority. However, special circumstances can extend a child being a “child of the marriage.” In some situations, a child’s enrollment a post-secondary education can extend support obligations past their reaching the age of majority. A recent decision from the Alberta Court of Appeal looked at whether an adult child who dropped out, only to eventually re-enroll in university, qualified for child support.
The background
The parties’ daughter graduated from high school in 2013, not long after they separated. She was about 18-years-old at the time. She had originally enrolled in university in January 2014, but withdrew from classes within two years. In August 2016 she moved in with her boyfriend for just over a year before moving back home with her mother in October 2017. She soon enrolled at a community college, taking a course scheduled to last one year.
The child had made arrangements to work part-time while at school, but also obtained a student loan. When the mother heard of this, she took steps to cancel it and paid the child’s tuition herself. The father, who had previously helped with education costs, refused to contribute to the child’s college program.
In response to the father’s refusal, the mother applied to the court for an order that the father pay child support by way of s.7 expenses, which are meant to cover extra and extraordinary expenses over and above normal child support payments.
At trial
The trial judge found the daughter to no longer be a “child of the marriage.” Citing a 1993 decision from the Supreme Court of British Columbia, the court found that whether a child attending a post-secondary institution should be considered a child of the marriage “requires examination of all of the circumstances.”
In this case, the trial judge took into account the child’s age, her initiative in getting a student loan, and arranging for employment. The trial judge determined the child was going to be able to finance her education, meaning she was no longer financially dependent on her parents. Emphasis was also placed on the child’s year spent living with her boyfriend.
The appeal
The mother appealed the trial judge’s decision, arguing when parents have higher incomes (as was the case here), there should not be a requirement for the child to take out student loans to finance their education. She also argued the trial judge placed too much emphasis on the year the child spent living with her boyfriend.
In its decision to dismiss the appeal, the court wrote
“We agree with the (mother’s) argument that dependent children of parents who can afford it are not necessarily required to finance their education with student loans. The problem faced by the appellant here is that the chambers judge found that the appellant’s daughter was not a dependent child of the marriage and considerable deference is given to child support decisions because of their fact-based and discretionary nature. Such decisions should not be overturned ‘unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong’ (Hickey v Hickey, 1999 CanLII 691 (SCC), [1999] 2 SCR 518 at paras 10-11, 172 DLR (4th) 577).”
Jason P. Howie has over 25 years of experience dealing with all types of family law issues. We know it is important for people going through family law issues to receive reliable, well-informed legal advice with their best interest in mind. In light of this, we take a calm, rational approach to the issues faced by our clients, understanding that some matters require urgency, while others call for a steady, methodical approach. Regardless of what your situation is, we are equipped to help you through it. Please call us at 519.973.1500 or reach us online to see how we can help you today.
