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While most people might reasonably associate minors under the age of 18 with child support, the truth is that child support obligations can continue beyond when a child turns 18.
A common example of this could be when the child attends post-secondary education. Of course, not all educational paths are the same. Should a parent be responsible for child support if their child decides to continue their academic pursuits though the PhD level? This was a question recently addressed by the Ontario Superior Court of Justice.
The family’s story
The mother and father were married in 1993 and had two children before they separated in 2001 (they were divorced in 2004). During their marriage they had two children. The children were 22 and 23 years old at the time of the hearing. The court described the family as well-off, with the court stating the parents placed a very high value on education, which made sense since the father was a university professor.
In 2011 a support order was made, requiring the mother to pay the father $4,000 per month in child support based on her annual income of $593,500. The order also called for the children’s extraordinary expenses to be shared in proportion to the parents’ income. The order listed post-secondary education expenses as qualifying under “extraordinary expenses.”
The issue arose when the eldest child decided to pursue a doctoral program at university with the younger child saying they planned to do the same. This news cased the mother to bring a motion for an order terminating her obligation to pay child support, arguing it should have ceased upon their earning of an undergraduate degree.
The court’s analysis
The court began its analysis by referring to s. 17(4) of the Divorce Act, which states the court must be satisfied there has been a “change of circumstances as provided for in the applicable guidelines” for it to vary child support. The court was satisfied that enough had changed, including the income of both the children and the parents, to warrant a discussion on making a variation.
The first question the court asked is whether the change has ended the obligation to pay support. To answer that, the court has to determine that the child “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 necessities of life”. There are a number of factors, known as the “Farden factors” that can help determine this. They are:
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 or not the child has applied for, or is eligible for, student loans or other financial assistance;
c) 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;
d) the ability of the child to contribute to his own support through part-time employment;
e) the age of the child;
f) the child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;
g) what plans the parents made for the education of their children particularly where those plans were made during cohabitation;
h) 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.
The court determined that while there had been a significant change in circumstances, a review of the child support order did not support a termination of support. The court again highlighted the importance the parents had placed on academic achievements as well as their extremely high income in its determination that they could, and should, continue to pay for their children’s educations.
To speak with an experienced Windsor lawyer about child custody or support, call 519.973.1500 or contact us online. Many of our clients are referred to us by former and current clients, and also by lawyers, counsellors and other professionals.
