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What happens to a payor’s child support obligations once his or her children are adults pursuing higher education? Does child support terminate, or does it remain payable? An Ontario court grappled with this interesting question in Makdissi v. Masson.
The Parties’ Story
The parties were married in June 1993, separated in September 2001, and divorced in March 2004. They had two children together, aged 22 and 23.
The father was a university professor and the mother was a physician.
In 2011, an order for child support was made. The judge at the time decided that the child support tables were not appropriate in determining the level of child support, and ordered the mother to pay the father child support in the amount of $4,000 per month, as well as 82% of the children’s extraordinary expenses. This amount was meant to cover the “indirect expenses” for the children, such as housing, utilities and groceries.
Since 2011, one child had been admitted to a doctoral program at a university, and the other child also hoped to pursue a doctoral program at another university.
The mother brought a motion for an order terminating support for each child on the date they completed, or would complete, a second post-secondary degree (i.e., when they each had earned a master’s degree).
The Relevant Legal Principles
Section 17(4) of the Divorce Act provides that the court must be satisfied that there has been a “change of circumstances” before granting a variation in child support.
In addition, section 14 of the Federal Child Support Guidelines provides that where the amount of support was calculated using a basis other than the child support tables (as was the case here), 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.
The Divorce Act also outlines that a parent may be obligated to continue paying child support for a child that “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.”
The factors often applied to this question are from a Supreme Court of British Columbia case, Farden v. Farden, and include:
- 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; and
- 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’s Decision
The court found, firstly, that there had been a significant change in circumstances that justified a review of child support in this case. One child was on their way to completing a master’s degree, and the other child was enrolled in a PhD program. Furthermore, the incomes of the parties and the children had changed.
In concluding that the change in circumstances did not end the mother’s obligation to pay child support, the court noted that this was a family with high academic expectations, very intelligent and academically motivated children, and a combined income approaching one million dollars per year. In the court’s view, the parties could afford post-secondary education for their children, and the children had not repudiated their relationship with the mother. Overall, the court found that, in this instance, all of the Farden factors favoured an ongoing entitlement to support.
Lessons Learned
Depending on the circumstances of your case, your child support obligations may not terminate when your child(ren) reach the age of majority. If you have questions about your child support obligations or rights, it is best to speak with a lawyer. At Gelman & Associates, our lawyers provide exceptional legal representation in all family law matters. Our goal is to always empower clients to make informed decisions about their future. We give all prospective clients a comprehensive family law kit during their initial consultation, as well as a copy of our firm’s handbook on separation and divorce. This information is full of resources that will help you understand and navigate the difficult and often complicated separation and divorce process.
With six offices throughout Aurora, Barrie, Downtown Toronto, Mississauga, North York and Scarborough, we are easily accessible by transit and off-highway. Our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at 1-844-769-0737, or contact us online to schedule an initial consultation.
