Child support obligations can be one of the more difficult aspects of a divorce or separation for people to handle in a financial sense. While popular culture references might tell us that child support obligations end when a child turns 18, that’s not always the case. We’ve spent some time in previous blogs talking about what happens to spousal support after a certain amount of time, but we have not had the opportunity to bring child support into the discussion. A 2018 decision from the Ontario Superior Court of Justice provides us with a good look at what might cause child support obligations to extend past 18-years-old.
A child of the marriage?
The case concerned a number of issues a couple was dealing with after they separated. One of the issues was whether their 22-year-old daughter (“C”) was still considered a “child of the marriage.” What’s a child of the marriage? In Ontario, the Divorce Act states that child support is payable in respect of an adult child where the child remains a “child of the marriage,” which is defined as the child of two spouses of former spouses, who, at the material time:
- Is under the age of majority and has not withdrawn from their charge, or
- Is over the age of majority or over and under their charge but unable, by reason if illness, disability or other cause, to withdraw from their charge to obtain the necessities of life.
C did not qualify under the first set of criteria, but we see with the second set that there are a number of ways for someone over the age of majority to qualify. In these cases, it is not always possible to cancel child support, even when the child is over 18.
What about a student?
In this situation, C was attending university. The question for the courts was whether that made her unable to withdraw from her parents’ charge. The court referenced a 2010 decision that addressed how children pursuing post-secondary education might continue to qualify for child support. The decision stated that “If a young adult is diligently pursuing studies in a suitable program and there is evidence establishing the need for support, there is a virtual presumption that support should be provided for at least an initial university degree or college program.” The court went on to explain that graduate studies might become more burdensome for a student to prove they need child support. The courts have come to use a number of factors to consider whether a student over the age of majority is still entitled to support. They are known as the Farden factors, stemming from a 1993 British Columbia decision. These factors 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;
- At least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.
In this case, the court determined that C’s pursuit of her university education entitled her to continue to receive child support payments from her mother. Contact Gelman & Associates to learn how experienced family law lawyers can ensure the best possible support arrangement for your children. In addition to our firm’s separation and divorce handbook and numerous web-based resources, all prospective clients are given a comprehensive family law kit during their initial consultation, with ample information and resources to help individuals understand and navigate the separation and divorce process. We can be reached at (844) 736-0200 or online for an initial consultation.
