Sept 19, 2008
Child Support for Adult Children: When Does Economic Childhood End?
Nicholas Bala
Professor, Faculty of Law
Queen’s University
Contact:
Professor Nicholas Bala
Faculty of Law
Queen’s University
Kingston, Ontario
Canada
K7L 3N6
Email bala@queensu.ca
Tel. 613-533-6000 ext 74275
Fax 613-533-6509
Presentation at the Frontenac Law Association Legal Conference, Gananoque, Oct. 3, 2008.
The author wishes to acknowledge research assistance from Colleen Feehan and Lindsay Kenalty
(Queens’ Law 09) and funding support from the Social Sciences & Humanities Research
Council.
Abstract: This paper examines the legislation applicable in Ontario, both federal and provincial,
which imposes an obligation on separated or divorced parents to support adult children, and
reviews leading cases interpreting this legislation. Unlike most areas of child support law where
the introduction of the Child Support Guidelines brought a significant degree of predictability
and reduced the need to consider the circumstances of individual children and parents, support
for adult children remains an area where there is significant judicial discretion and only limited
predictability. While this remains a contentious and discretionary area, there are some clear
trends in the case law. Reflecting the changes in intact families where young adults are living
with their parents longer as well as looking to parents for more financial support, compared to a
couple of decades ago, the courts are now more likely to recognize the obligation to provide
support for adult children. Further, the duration of support is now likely to be a somewhat longer,
though most support orders terminate when children are in their early twenties, and the
obligation to provide support very rarely extends past the mid-twenties.
Child Support for Adult Children: When Does Economic Childhood End?
Nicholas Bala
Introduction: Scope and Themes of this Paper
The amount of parental assistance that adult children in Canada are receiving is increasing, as
more young adults spending more time in post-secondary institutions with parental support and
living with their parents until a later age. For parents in intact families, the provision of support
and assistance to adult children fulfils a moral obligation that many parents feel to help their
children attain a reasonable degree of self-sufficiency.
However, as separated and divorced
parents may feel less inclined to honour this moral obligation,1 and accordingly Canadian law
imposes a legal obligation on parents who are separated or divorced to provide support for adult
children. The objective of the legal obligation is to help adult children achieve self-sufficiency,
either by obtaining a post-secondary education and pursuing a career, or, in cases of disability or
unemployment, by providing support through a transitional period until other social institutions
will provide an acceptable amount of financial aid or self-sufficiency is attained.
This paper considers the legislation applicable in Ontario, both federal and provincial, which
imposes an obligation to support adult children. I discuss some of the more important and
interesting case law interpreting this legislation, but readers are cautioned that this paper does not
purport to review all of the many reported cases in this area. 2 First, I consider the circumstances
in which an obligation to provide support for adult children exists, and how long it is lasts. Then,
I discuss how the quantum of support for adult children is determined. I then briefly address the
conditions that courts may place on an order for the support of adult children and the effects that
1
The experience in the United States, where very few states have an obligation to support adult children, is that after
separation relatively few non-custodial parents assist their children with the costs of post-secondary education, and
one of the major negative impacts of divorce for children is difficulty in funding and completing post-secondary
education. See e.g. K . Zvoch, “Family Type and Investment in Education A Comparison of Genetic and Stepparent
Families” (1999), 20 Evolution and Human Behavior 453-464.
2
This is a topic on which there are many reported cases; there are some good, fairly recent published articles that
also review the jurisprudence in this area; see Aaron Franks, “Post-Secondary Education & the 'Twixters'” (2005),
24 Can. Fam. L. Q. 5; and Marie Gordon “’Making the Break’: Support for Adult Children in 2006 ,” in Martha
Shaffer ed, ed., Contemporary Issues in Family Law: Engaging with Legacy of James G. McLeod (Toronto:
Carswell, 2007), 299-349. There are a number of loose-leaf services that digest child support cases, including
MacDonald & Wilton, Child Support Guidelines Law and Practice, 2nd edit, Toronto: Thomson, 2004.
1
a separation agreement might have on the making of a child support order for adult children.
Finally, I briefly address the constitutionality of the present law.
Unlike most areas of child support law where the introduction of the Child Support Guidelines in
1997 brought a significant degree of predictability and reduced the need to consider the
circumstances of individual children and parents, support for adult children remains an area
where there is significant judicial discretion and only limited predictability. The facts of
individual cases may be significant, as may be the opinions the particular judge about the
socially contentious issue of when economic childhood ends, and when and how the adult
obligation of self-support begins.
While this remains a contentious and discretionary area, there are some clear trends in the case
law.
Reflecting the changes in intact families where young adults are living with their parents
longer as well as looking to parents for more financial support, compared to a couple of decades
ago, the courts in Ontario and other Canadian provinces are now more likely to recognize the
obligation to provide support for adult children. Further, the duration of support is now likely to
be a somewhat longer, though most support orders terminate when children are in their early
twenties, and the obligation to provide support very rarely extends past the mid-twenties of the
adult child.
The Social Context: “Delayed Adulthood”
There have been two different social trends related to “coming of age” in Canada that are in
some respects in tension with one another, while in other respects reinforcing: the “adultification
of youth” and “delayed adulthood.”3
In some ways adolescents in Canada are having “adult”
experiences earlier in life than was the cases a few decades ago: the age at which youth have
their first experiences with dating, sex, drugs and alcohol has fallen, youth are spending less time
3
See e.g Harry Blatterer, Coming of Age in Times of Uncertainty: Redefining Contemporary Adulthood (Berghahn
Books, 2007); Julia Margo et al, Freedom's Orphans: Raising Youth in a Changing World (Institute for Public
Policy Research, 2006).
2
with their parents and more with peers, and high schools are placing greater emphasis on “career
planning” than in the past. On the other hand, and of particular relevance for the issue of child
support for adult children, “delayed adulthood” is reflected in a longer period of post-secondary
education and later age of marriage (especially for middle and upper income young adults).
Securing good employment requires more education and training, causing increasing numbers of
young adults to spend more time in post-secondary institutions.4 Further, the tuition for many
programs has dramatically increased.5 More time in school and higher tuition costs means
higher debt loads. 6 Higher debt loads have caused more young adults to live with their parents
while paying off debts rather than living on their own. For a number of economic, social and
cultural reasons, increasing numbers of young adults in Canada are delaying “independent
living” and continuing to live with their parents, or at least look to them for economic and social
support. 7
The Relevant Statutory Provisions
The authority for a court to order child support for children over the age majority is found in the
Divorce Act, and, in Ontario, the Ontario Family Law Act, while the Child Support Guidelines
are to be used to determine the quantum that should be ordered.
The Divorce Act and the Family Law Act determine who is eligible for support; while there is
significant overlap in the relevant definitions, there are some significant differences. First, they
4
Full-time college enrolment increased 28% from 1987/88 to 1999/00. [Further], part-time enrolment was about
12% higher in 1999/00 than in 1987/88. Full-time enrolment in career technical programs grew by about 40% for the
country as a whole during the 1990s, from 213,700 in 1989/90 to 300,000 in 1999/00. See Canada Statistics online:
<http://www43.statcan.ca/02/02c/02c_006_e.htm >.
5
Tuition fees, and to a lesser extent private-sector funding, have increased over the past several years. In 1981/82,
81% of university education expenditures were covered by government funding, while student fees paid for 9%. By
2001/02, the government share had dropped to 62%, whereas the share coming from student fees increased to 20%.
From 1990/91 to 1999/00, undergraduate tuition fees rose an average of 9.6% per year. See Statistics Canada online:
<http://www43.statcan.ca/02/02c/02c_007a_e.htm>.
6
Students in bachelor programs who graduated in 2000 owed about 30% more than the class of 1995 and 76% more
than the class of 1990 (in 2000 constant dollars). College graduates with government student loans owed 21% more
than in 1995 and 76% more than the class of 1990. See Statistics Canada online:
<http://www43.statcan.ca/02/02c/02c_007b_e.htm>.
7
Children are taking longer to leave the nest these days. In 2001, 41% of young adults lived with their parents,
compared with 39% in 1996, 33% in 1991 and 27% in 1981. The proportion of younger set of this age group (ages
20- to 24-year-olds) was more likely to still be living at home, especially men, at 64%, versus women, at 52%” See
Statistics Canadaonline: <http://www43.statcan.ca/02/02c/02c_007b_e.htm >. For a light llok at some of the
cultural dimensions of the delay in independent living, see the 2006 movie Failure to Launch.
3
differ on who can make an application for child support for an adult child. Second, they differ on
the circumstances in which child support can be ordered for an adult child.
The Divorce Act provides:
2. (1) “child of the marriage” means a child of two spouses or former spouses who, at
the material time…
(b) 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 Ontario Family Law Act provides:
31. (1) Obligation of Parent to Support Child – Every parent has an obligation to
provide support for his or her unmarried child who is a minor or is enrolled in a full
time program of education, to the extent that the parent is capable of doing so.
(2) Idem – the obligation under subsection (1) does not extent to a child who is
sixteen years of age or older and has withdrawn from parental control.
The provisions of the Family Law Act govern cases where the parties are not obtaining a divorce,
most often because the parents were not married to each other.8
Determining the amount of support that the child will be entitled to under either legislative
scheme is done under the Child Support Guidelines, which provide:9
3. (2) Child the age of majority or over – Unless other provided under these
Guidelines, where a child to whom an order for the support of child relates is the of
majority or over, the amount of an order for the support of a child is
(a) the amount determined by applying these Guidelines as if the child were under
the age of majority; or
(b) if the court considers that amount to be inappropriate, the amount that the court
considers appropriate, having regard to the condition, means, needs, and other
circumstances of the child and the financial ability of each spouse to contribute to the
support of the child.
8
There is some variation in the provincial regimes governing the support of adult children. British Columbia,
Newfoundland, New Brunswick, Quebec, Saskatchewan (Family Maintenance Act, .S.S. 1997, c. F-6.2, s. 4(1)), the
Yukon and the Northwest Territories have provisions that are identical or very similar to those in the Divorce Act;
Prince Edward Island’s Family Law Act, S.P.E.I. 1995, c. 12, s.31 is modelled on the Ontario provision, while
Alberta has a cap of 22 years and Manitoba a cap of 24 years.
9
These are the Guidelines under the federal Divorce Act. There are some minor differences in the wording of the
Guidelines under the provincial Family Law Act, reflecting the fact that support under the F.L.A. may be payable by
a parent who is not a spouse. These differences in wording have no significance for the issues under discussion in
this paper.
4
7. (1) Special or Extraordinary Expenses – In a child support order, the court may,
on either spouse’s request, provide for an amount to cover all or any portion of the
following expenses, which expense may be estimated, taking into account the
necessity of the expense in relation to the child’s best interests and the
reasonableness of the expense in relation to the means of the spouses and those of the
child and to the family’s spending pattern prior to the separation...
(e) expenses for post-secondary education
Eligibility Under the Two Statutes
The Divorce Act and the Family Law Act differ in the some of criteria for eligibility for support
for an adult child. The Family Law Act has a narrower and somewhat clearer test, with eligibility
only if a young adult child is “enrolled in a full time program of education” and has not
voluntarily withdrawn from parental control.
The Divorce Act has a broader and more
discretionary test, allowing for support for young adults “but unable, by reason of illness,
disability or other cause, to withdraw from [parental] charge.” In practice there is significant
discretion under both pieces of legislation in for determining both whether to order support (or
cease to require it) and how much support to order.
Most all of the reported case law for support of adult children under the Divorce Act deals with
cases where the child is pursuing post-secondary studies, and there is only limited practical
difference between the two legislative regimes.
However, the Divorce Act is clearly broader,
allowing for support for children who are disabled, pursuing competitive athletic careers or
simply unemployed.
Who Can Apply?
The Divorce Act allows only spouses and former spouses to apply for support on a child’s behalf,
as recognized by Johnstone J. in Wahl v. Wahl:10
Support is a creation of statute. This means that standing to apply for support,
entitlement to support, and form, duration and amount of support are all governed by
the enabling support legislation. A child is not a party to divorce proceedings and
10
Wahl v. Wahl, 2000 CarswellAlta 13, 2 R.F.L. (5th) 307 (AB.Q.B).
5
there is no provision in the Divorce Act to allow a child to claim support or apply to
vary an outstanding support order.
By way of contrast, the Family Law Act states that a “dependant” may apply for the support,
which allows a child to make his or her own application. Even under the F.L.A., child support
for adult children is normally obtained by the custodial parent, but children can themselves
apply. In Letourneau v. Haskell, Clements Co. Ct. J.11 allowed the application of a sixteen year
old boy for support from his mother under what is now the Family Law, and commented:12
... the concept of the ‘withdrawal from parental control’ at age 16 means a
‘voluntary’ withdrawal; the free choice, indeed, of the child to cut the family bonds
and strike out on a life of his own ... It is his choice, freely made, to cut himself away
from the family unit. Once this choice is freely made and the responsibility accepted
by the child, the family unit has, in effect, been severed and the responsibility of the
parents to support the child thus ceases.
If the child is driven from parental control by the emotional or physical abuse in
the home brought on due to the circumstances in the home, then surely he cannot be
compelled to remain there ... The choice of leaving was not voluntary but of
necessity to ensure the physical and mental well-being of the child.
There is not much reported case law on adult children bringing their own support applications
under the F.L.A, and while in theory such an application could be brought even if parents
continue to reside together, all of the reported cases actually involve situations where the parents
are no longer living together. The courts have generally accepted that where a child is 18 or 19
years and still attending high school, there is an onus on the parents to establish that the child has
voluntarily withdrawn from “parental control.”13 The courts are generally sympathetic to those
young adults who are still in high school and having difficulty in living with either parent if there
has been emotional turmoil as a result of parental separation. In Judd v. Judd the court held that
an 18 year old girl whose parents had separated could bring her own child support application
under the F.L.A. against her father, despite the fact that she was living with a the family of a
friend. The court concluded that she could not reasonably be expected to live with either parent,
11
Letourneau v. Haskell (1979), 25 O.R. (2d) 139 (Co.Ct.).
Letourneau v. Haskell (1979), 25 O.R. (2d) 139 (Co.Ct), at 151.
13
See e.g. Dolabille v Carrington (1995), 16 R.F.L. (4th) 430 (Ont. Prov. Ct.) (only in the “clearest cases” will the
court find that a child at school has “voluntarily” withdrawn from parental control); and Perovic v. Nagtzaam,
[2001] O.J. 3462 (Ont. Ct.J.), per Dunn J. For a case that seems to place a much lower onus on parents if a child has
moved out is Fitzpatrick v Kalrein(1994), 5 R.F.L. (4th) 290 (Ont. Prov. Ct.).
12
6
taking into account the negative attitude of her step-mother towards the girl. Guay Prov. Ct.J
observed: 14
it is clear that the respondent [daughter]…did not remove herself from the home of
either of her parents simply because she was a rebellious teenager seeking a life of
untrammelled freedom. Her departure from each of these homes, I find, was
ultimately caused by the break-up of her parents' home and her consequent inability
to function in either of the reconstituted units. As such, it cannot be argued that she
voluntarily withdrew from parental control. As an eighteen-year-old who is still
pursuing her education, she should not be left to her own wits to fund her
uncompleted education.
On the other hand, in cases where young adults choose to establish independence, they cannot
look to their parents for support; the lack of judicial sympathy is most apparent in cases where
the child leaves to live with a boy friend (or girl friend.)15
In cases where an order for the support of an adult child has already been order under the
Divorce Act, the child may not bring an additional application against the payor on his or her
own behalf under the Family Law Act as this could effectively charge the payor parent with two
simultaneous orders for support. In the 2008 Saskatchewan case of Skolney v. Herman, a
nineteen year old had moved out of the homes of both of her parents while attending a post
secondary college program. She filed an application for support from both of the parents.
Previously, a divorce order had ordered that her father pay child support to her mother, with
whom the girl had lived after separation. The court held that the girl could not bring her own
application under the Divorce Act, as only a spouse or former spouse could do so. Further,
because there was a child support order in effect under the federal Divorce Act, an application for
child support could not be brought under the provincial Family Law Act due to the constitutional
doctrine of paramountcy. McIntyre J. explained:16
[There is] a clear and obvious conflict in operation if the father were the subject of
two requirements to pay support, once to his former wife for the maintenance of the
14
[1995] O.J. No. 2717(Ont. Prov. Ct.), at para. 20.
15
See Kincaid v Arsenault (2002), 27 R.F.L. (5th) 84 (Ont. Sup. Ct.), per MacKenzie J.
Skolney v. Herman, 2008 SKQB 55, para. 6 (Sask. Q.B.). There is also some doubt about whether an adult child
as opposed to a parent can bring an application: see Family Maintenance Act, .S.S. 1997, c. F-6.2, s. 4(1). See also
Kulchyski v. Kulchyski (1996), 22 R.F.L. (4th) 261, [1996] O.J. 992 (Ont. Gen. Div.)
16
7
“child of the marriage” and again to the child himself as a dependent who has
achieved relief under the provincial statute and had the quantum of that support
assessed according to the criteria set out in the Family Law Act... Until the provisions
in the divorce decree were extinguished, there would continue to be an apparent and
actual conflict if the applicant were allowed to maintain his case and to get an order
under provisional law. By virtue of the doctrine of federal paramountcy, only the
provision in the divorce decree granted under federal law could prevail.
In summary, an order for an application to be made under either Act, the child must display a
level of dependence, and as a result, applications are most likely to be made and enforced by the
“custodial” (or perhaps better the “residential”) parent. In practical terms, that parent is most
likely to have the resources and understanding to deal with the court process. However, if there
is no child support order under the Divorce Act, it is possible for a child to bring his or her own
support application under the Family Law Act, provided that the child is in attendance at school
and can show that there has not be a “voluntary withdrawal from parental control.”
Who Can be Paid?
Unlike with the application, which cannot be brought by a child under the Divorce Act¸ both the
Divorce Act and the Family Law Act permit support payments to be made either to the other
parent or the child directly.
17
Although payments are usually made to the applicant parent,
direct payment to the child may be ordered or arranged by agreement in cases where the child is
living away at school or there is a high level animosity between the two parents.
In some cases where the relationship between an adult child and the payor parent is strained, the
court may order that payment is to be made to the child or even directly to a post-secondary
institution on the child’s behalf, in order to emphasize to the child “where the money comes
from,” and hopefully instil an appropriately appreciative attitude in the child. This will also
ensure that there is no benefit to a hostile applicant parent from the support.
17
There may also be difficulty in having the adult child enforce the order: see Razavi-Brahimi v. Ershadi,[2007]
O.J. No. 3736, 43 R.F.L. (6th) 439 (Ont. Ct.J.), where Murray J, at para. 47 observed:
The Family Responsibility Office's current practice is that, if support payments are ordered to be made directly
to a child, it will enforce these payments and forward the money to the child only if the child is in the style of
cause. If the child is not in the style of cause, then the Family Responsibility Office will let the custodial parent
enforce the order only if it goes into arrears.
8
In Colford v. Colford18the court found that the child’s mother had negatively influenced her son
after the separation, and effectively alienated him from the payor father. By the time that the
child was an adult and residing at university, the father brought an application to terminate
support. Goodman J continued support, but ordered that support was to be made directly to the
child’s post-secondary institution. Similarly, in Rosenberg v. Rosenberg19 Chapnik J. found that
the mother bore much of the responsibility for the breakdown in the relationship between the
daughter and her father. The child in this case also lived away at school for most of the year.
Accordingly, Chapnik J. ordered that support payments be made directly to the child and to her
educational institution.
Adult Child Support: The Four-Step Approach of Weseman
In the British Columbia case of Wesemann v. Wesemann,20 Martinson J. articulated a frequently
cited “four-step approach” for determining support for an adult child under the Divorce Act, an
approach that can also with minor adjustments to cases under the Ontario Family Law Act.
Step One: Decide whether the child is a "child of the marriage" as defined in the
Divorce Act? If s/he is not, that ends the matter.
Step Two: Determine whether the approach of applying the Guidelines as if the child
were under the age of majority ("the usual Guidelines approach") is challenged. If
that approach is not challenged, determine the amount payable based on the usual
Guidelines approach.
Step Three: If the usual Guidelines approach is challenged, decide whether the
challenger has proven that the usual Guidelines approach is inappropriate. If not, the
usual Guidelines amount applies.
Step Four: If the usual Guidelines approach is inappropriate, decide what amount is
appropriate, having regard to the condition, means, needs and other circumstances of
the child and the financial.
Step one involves determining whether or not the child is eligible for support and for how long
that support will last. Steps two, three and four are followed to determine the quantum of support
that should be ordered. This paper will now address these two issues in order, though the
18
Colford v. Colford , 2005 CarswellOnt 1527 (Ont.S.C.J.).
Rosenberg v. Rosenberg , [2003] O.J. 2962 (Ont S.C.J).
20
Wesemann v. Wesemann (1999), 49 R.F.L. (4th) 435 (BC. S.C.).
19
9
discussion will demonstrate that there is often some overlap between the different steps and
issues.
Eligibility & Onus Under the Divorce Act
In order for an adult to be eligible for support under the Divorce Act, they must be considered a
“child of the marriage” who is “unable, by reason of illness, disability or other cause, to
withdraw from their charge or to obtain the necessities of life.” It is clearly established that the
parent who is claiming support for an adult child has the onus to prove that the child is unable to
withdraw from parental control and eligible for support, although the nature and amount of
evidence will vary with the case;21 in a practical sense, the onus becomes greater as the child
grows older.22 As in other child support cases, if post-secondary expenses are being claimed
under s. 7 of the Guidelines, there is an onus on the claimant to adduce satisfactory evidence of
the amount of these expenses.23
Most often the issue of eligibility of an adult child for support arises in the context of a motion
by the payor to terminate support, and the matter is resolved without the court hearing viva voce
evidence.24 While there may be cross-examination on affidavits, claimants need to be adequately
prepared for these hearings, ensuring that all of the necessary evidence is in documents and
affidavits.
There are cases which suggest that the recipient parent has a duty to inform the other parent if an
adult child ceases to be eligible for support, for example because the child has ceased to attend a
post-secondary program.25 This seems appropriate as that parent will inevitably be better
informed about eligibility and is the person benefitting from the order, and further is consistent
with the original onus being on the claimant parent. In Ontario, the Family Responsibility and
Support Arrears Enforcement Act, s. 8(9) explicitly allows the court charged with enforcing a
child support to order “repayment in whole or in part from a person who received support after
21
See e.g. Paulson v Paulson, [2007] S.J. 704 (Q.B.); Y.S. v K.T.,[ 2008] B.C.J. 624 (Prov. Ct.); and Erickson v
Erickson, [2007] N.S.J. 483 (S.C., Fam. Div.)
22
See e.g Lall v Lall, [2008] O.J. 1275 (Ont. Ct. J.), per Wolder J.
23
See e.g Calhoun v Ritchie, [2008] M.J. 17 (Q.B.) (application for some expenses claimed dismissed, subject to
opportunity to adduce further evidence.)
24
See e.g. LaRue v LaRue, [2008] O.J. 1146 (Ont.C.A.); Canada v Canada-Somers, [2008] M.J. 164(C.A.)
25
See e.g Selig v Smith, [2008] N.S.J. 250 (C.A.), at para. 32
10
the obligation was terminated, if the court is of the opinion that the person ought to have notified
the Director [of the Family Responsibility Office] that the support obligation had terminated.”
26
Even without such legislation, it would appear that courts have the inherent authority to order
repayment, though even with such legislation the order for repayment will only be enforceable as
an ordinary civil obligation and by family support obligation enforcement statutes.
Disability and Illness
Under the Divorce Act, an adult may be eligible for support if he or she is unable to be selfsupporting due to physical or emotional disability. A child is likely to be considered unable to
withdraw from parental control in this situation if it can be shown that the young adult suffers
from physical or emotional disabilities that result in the child being unemployed and the child
has no access to other financial resources. However, for children who are disabled or ill, the
courts appear to accept that support will come to an end when “government has chosen to treat”
the child “as an adult for purposes of establishing” eligibility for a disability pension or social
assistance, which normally occurs by early twenties, if not sooner.27
In Greenberg v. Greenberg, a nineteen year old daughter was found to be unable to withdraw
from parental control as she lacked the maturity and emotional stability to function
independently. Dixon J. ordered support to continue for the child while she pursued high school
upgrading and worked part-time. Dixon J. found that the child “does not have the emotional or
psychological maturity to function independently in the community and to complete her
education with her own resources.”28 The court held that the issue of her support after she
completed high school should be resolved at a later date.
If a young adult is eligible for support from social assistance or financial support from other
sources that will allow for at least a subsistence level standard of living, eligibility for support
from a parent is likely to be terminated. In the 2003 Ontario case of Cossette v. Cossette a
twenty year old young woman had learning disabilities that left her unable to function above a
grade seven level, and therefore she received a disability pension from the province of $816 per
26
For an example of a case where a court ordered repayment, see Cox v Gummer, [2007] O.J. 249 (Ont. Ct.J.)
Curry v Curry,, [2008] B.C.J., 1562 (S.C.), at para.8, per McEwan J.
28
Greenberg v. Greenberg (1990), 25 R.F.L. (3d) 446 (AB. Q.B.).
27
11
month while living with her mother. Panet J. ruled that “the social assistance received by that
child should be taken into account by the court”29 in determining whether she was eligible for
support, and observed “when a handicapped child becomes an adult there is a societal obligation
to take over the financial support of these adults.”
In the 1990 Manitoba case of Magne v. Magne,30 the twenty-one year old daughter had a learning
disability and functioned at a grade four level. She was living with her mother and receiving a
government disability pension of $300 per month, an amount that would not be sufficient to
support even subsistence level existence. Mullally J. concluded that despite “a program of
upgrading at a learning centre [the child] is still not capable of finding or holding a job [and was]
satisfied that she is still a “child of the marriage.”31 The support order for the mother included
provision for this daughter, though in setting the amount the judge took into account the amount
of pension.
In Matheson v. Matheson,32 at the age of nineteen, a woman began to receive significant monthly
payments from a lifelong structured settlement for injuries that she suffered at the age of eight.
The father, who divorced the mother a few years before the settlement was made and who was
not aware of the terms of the settlement, had been paying child support under a Divorce Act
order for a number of years after the payments began, though he eventually stopped paying and
enforcement proceedings were commenced. When the woman was 29 years of age, the father
brought an application to retroactively terminate child support. Aston J. concluded that “[the
child’s] income [from the settlement] is sufficient to allow her to provide for herself,” and
retroactively ended the support from the time that she was nineteen.
In Hanson v. Hanson, a 21 year old young woman, who was a high-functioning Down's
Syndrome adult, lived and completed daily functions independently, received government
disability benefits, and was able to hold down part-time employment was denied support from
her father because Wright J. was “satisfied that a level of independence has been attained such
that it can be concluded that she is no longer under parental charge. She has resided in her own
29
Cossette v. Cossette, 2003 CarswellOnt 4142 (Ont. S. C.J.).
Magne v. Magne (1990), 26 R.F.L. (3d) 364 (Man. Q.B.).
31
Ibid. at para. 6.
32
Matheson v. Matheson, 2003 CarswellOnt 3757, 48 R.F.L. (5th) 283 (Ont. S.C.J.).
30
12
apartment for more than three years and ... [she] is employable33.” Disability itself will not
justify a support order for a young adult, but rather that the child must be unable to withdraw
from parental support.
In cases of disability, the obligation to pay support to allow post-secondary education to be
completed may extend longer than it otherwise would.
In Andersen v. Andersen34 the 25 year
daughter suffered from spina bifida and was confined to a wheel chair but able to attend
university. She had obtained a bachelors degree but needed a masters degree in education to be
qualified to teach in special education, her chosen field. The court ordered child support under
the Divorce Act to continue without setting a termination date.
“Other cause”- Pregnancy
In Bragg v. Bragg Noonan J. observed that “the case law is clear that ‘other cause’ is not limited
to illness or disability.”35 In this case, at the time of trial the nineteen year old daughter was
pregnant and living with her mother; she had been employed and was planning to return to
school when the child was about eight months old. The father was ordered to pay child support
for his daughter, with the stipulation that it would end if the mother did not return to full time
studies by the time that her child would turn eight months of age. Though not stated, the father
had no legal obligation to support his grandchild.
“Òther Cause” – Competitive Sports
In dealing with support for young adults who are undertaking more or less full time training for
competitive athletics, the courts are generally reluctant to order support, and will only do so
where there are reasonable prospects of an athletic career that will result in economic selfsufficiency. The courts are not willing to order a parent to support a young adult to train and
compete solely for self-fulfillment.
In Willock v. Willock, Dorgan J. ordered retroactive support for time when a young woman was
training as a world class cyclist. The judge emphasized that “[a]lthough cycling may not be
33
Hanson v. Hanson, 2003 SKQB 347, 43 R.F.L. (5th) 109 (Sask.Q.B.).
Andersen v. Andersen (1997), 32 R.F.L. (4th) 177 (BC. S.C.).
35
Bragg v. Bragg, 2000 CarswellNfld 22, 2 R.F.L. (5th) 344 (Nfld. U.F.C.).
34
13
directly connected to her educational goal of earning a degree in education, the evidence shows
there is a strong link between [her] …s porting activities and the pursuit of economic
independence”36 as an instructor or teacher.
By way of contrast, in Olson v. Olson, support was denied to a young man who was undertaking
full time ski training and competition as “[the son’s] specific evidence was that he wished to be a
law enforcement officer. No link between that aspiration and his sports training was made by the
evidence.37” The lack of connection between the sports training and future self-sufficiency is
likely to cause the courts to deny support. Similarly, in Pink v. Pink, the court held that two sons
attending an American college on a football scholarship were not eligible for support. Philip J.A.
observed:38
The emphasis of their program is football, and, from the record on this appeal, the
future advantages and benefits to them of their studies are highly speculative. We do
not believe that the husband's obligation ... to support ‘children of the marriage’
extends to the factual circumstances before us.
Philip J.A. concluded that the football playing was not likely to contribute to their future careers
or help them to become self-sufficient. Similarly in Hutchinson v. Hutchinson a twenty-one year
old daughter was denied support for her intention to practicing and playing golf game with the
goal of training for the Ladies' Professional Golf Association Tour in 3 years. Diamond J.
concluded that “the argument on behalf of the [custodial parent] that practicing and playing golf
is an extension of [the child’s] education is totally without merit.”39 The child had previously
held part time employment and it was found that pursuing golf was unlikely to contribute to the
child’s future financial stability.
36
Willock v. Willock, 2005 CarswellBC 2887, [2006] B.C.W.L.D. 1169, (BC.S.C.).
Olson v. Olson, 2003 CarswellAlta 254, 36 R.F.L. (5th) 196 (AB.C.A.).
38
Pink v. Pink, 1991 CarswellMan 30, 31 R.F.L. (3d) 233 (Man.C.A.).
39
Hutchinson v. Hutchinson, 1996 CarswellMan 534 (Man.Q.B.). See also Maxwell v Maxwell, [2007] B.C.J. 43
(S.C.) where Bruce J. terminated support for a 21 year old son who was primarily engaged in training and
participating in competitive kayak racing, observing (at para. 59):
Taking into account all of the relevant factors, I find that Dion is no longer a child of the marriage. Dion's
economic dependence stems entirely from a unilateral decision to pursue a sport instead of working parttime to support himself. There is little evidence before the court that this sport will lead to financial
independence and Dion's decision to devote the vast majority of his time to kayak racing was not supported
by both his parents either before or after their separation.
37
14
The courts are only willing require a payor parent to provide support under the Divorce Act for
young adults who training and competing in sports if there are reasonable prospects that this will
result in a self-supporting career.
“Other Cause” - Unemployment
Claims for support for adult children may also be granted based on unemployment, though
generally the courts will limit the duration of support in these cases. In Bruehler v. Bruehler,
Hutcheon J.A. of the British Columbia Court of Appeal stated that “‘other causes’ may be
sufficiently wide to include [states] of [economic] depression in a province where young people
of 18 and 19 years of age are unable to obtain employment to provide themselves with the
necessaries of life.”40 In deciding whether to order support for an unemployed adult child, the
courts will consider the job search undertaken by the child to obtain employment and the general
state of the employment market, and seem unwilling to order support without evidence of some
effort to obtain work.
In Smith v. Smith a twenty year old woman who still resided with her mother was unable to find
employment as an aspiring model. While the young woman had demonstrated some effort to find
work she had not yet succeeded and was still unable to withdraw from parental support.
Therefore, Oppal L.J.S.C.41 concluded that “[h]er financial dependence on her mother due to her
unemployment... qualifies her as a ‘child of the marriage’.... This is a valid and legitimate ‘other
cause’... Hence the [support orders] are to continue.” This order was qualified, however, by the
further statement that “[support] should not continue on an indefinite basis. The daughter must
continue to make realistic efforts in order to obtain employment or retraining42” and her
employment goals must strive to be realistic. Oppal LJ.S.C. limited the support to six months,
which was considered by the court to be sufficient time for the daughter to find employment.
40
Bruehler v Bruehler, [2005] B.C.J. 1958, 49 R.F.L. (2d) 44 (B.C.C.A.).
Smith v. Smith, 1987 CarswellBC 555, 12 R.F.L. (3d) 50 (BC.S.C.).
42
Ibid. at para. 9.
41
15
The idea that support for an adult child in order to find employment should not be unlimited is
also echoed in Gamache v. Gamache, where Trussler J. wrote: 43
A parent does not have an indefinite obligation to support a child who is ...
unemployed or underemployed. Instead, a parent has an obligation to assist the
parent on whom the child is dependent through a reasonable transition period. What
is a reasonable transition period is a question to be determined on the facts of each
case ... [and] emphasis [should be] placed on the inability of the child to support him
or herself.
In cases of unemployment, the courts have some sympathy for young adults who are having
difficulty in making the transition to the labour force, but the sympathy and the support will be
limited.
Post-Secondary Education
Although post-secondary education is not specifically mentioned in the Divorce Act as a “cause”
for remaining a “child of the marriage,” by far the greatest number of reported cases dealing with
support for adult child involve children enrolled in some form of post-secondary education. The
courts seem increasingly aware of the importance of post-secondary education, and to award
support for increasingly more such education, though there comes a point when the parental
obligation to support an adult student ends.
In 1994 in Martell v. Height, Freeman J.A. of the Nova Scotia Court of Appeal wrote that:44
As a general rule, parents of a bona fide student will remain responsible until the
child has reached a level of education, commensurate with the abilities he or she has
demonstrated, which fit the child for entry level employment in an appropriate field.
Freeman J.A. was clearly concerned that children whose parents have divorced have at least the
opportunity for support for post-secondary education for “entry level” employment. In the 1998
Alberta case of Achkewich v. Achkewich, Rooke J. seemed to support pushing that standard
higher, stating that “as we approach the millennium, the presumption of parental support for a
43
Gamache v. Gamache, 1999 CarswellAlta 369, 49 R.F.L. (4th) 258 (AB.Q.B.); see also Daye v Ekkebus, [2008]
B.C.J. 529 (S.C.) (3 months support after graduation from community college was “reasonable “ transition period.
44
Martell v. Height, 1994 CarswellNS 45, 3 R.F.L. (4th) 104 (N.S.C.A.). See also e.g. T. (P.) v. B. (R.), 2004
CarswellAlta 906, 50 R.F.L. (5th) 206 (AB.C.A.).
16
first degree of up to 4 years should apply, absent other contrary considerations.”45 Although
many of the reported cases deal with university programs, it is clear attendance at an
employment related program like “hairstyling and nail technology” course can also be the basis
for support of an adult child.46
Although the jurisprudence seems to indicate that there is not in law a “presumption” of support
during at least an initial post-secondary program, in practical terms if a young adult is seriously
engaging in studies and the parents have resources, it is likely that support will be ordered for at
least an initial university degree or college program In Wahl v. Wahl, Johnstone J. stated that
any “‘presumption’ does not entirely discharge the onus on the applicant to prove that the child,
by reason of attending school or college, is unable to withdraw from the charge of the parents or
to obtain the necessaries of life.47” In Wahl Johnstone J. was prepared to order support while the
daughter completed a three year music program, taking account of evidence about the young
woman’s strong record in the field and her clear need for financial support if she was to complete
the program. This generally supportive approach was also followed by Halvorson J. in Duncan
v. Duncan, where he stated that “attendance at college can be [a] sufficient cause preventing a
child from withdrawing from his parent's charge or from being able to obtain the necessaries of
life. But this must be proved.”48 As recognized in Duncan, the onus of proof is on the applicant
parent who seeks support from the payor parent, and the applicant must satisfy the court that the
child is truly unable to withdraw from parental control.49 As articulated in the 1995 British
Columbia decision of Ciardullo v. Ciardullo:50
The test is one of dependency. Merely ... attending school or college is not sufficient
to bring the child within the definition of "child of the marriage". It must be shown
the child is unable by reason of attending school or college to withdraw from the
charge of the parents or to obtain the necessaries of life.
In Felbel v Felbel the father brought an application to terminate support for his three adult
children and the mother effectively failed to provide any disclosure about the children’s
45
Achkewich v. Achkewich, 1998 CarswellAlta 1275, 220 A.R. 385 (AB.Q.B.).
See e.g. Canada v Canada-Somers, [2008] M/J. 164, 51 R.F.L. 262 (Man.C.A.)
47
Wahl v. Wahl, 2000 CarswellAlta 13, 2 R.F.L. (5th) 307 (AB.Q.B) at 3para. 34
48
Duncan v. Duncan, 1989 CarswellSask 60, 18 R.F.L. (3d) 46 (Sask. Q.B.).
49
Duncan v. Duncan, 1989 CarswellSask 60, 18 R.F.L. (3d) 46 (Sask. Q.B.)..
50
Ciardullo v. Ciardullo, 1995 CarswellBC 612, 15 R.F.L. (4th) 121 (BC.S.C.).
46
17
education, expenses or income.
Little J. granted the application and terminated support,
commenting:51
When it comes to support for adult children, the court must first consider whether
they are ‘children of the marriage’ …. Are they really ‘unable to withdraw’ from the
charge of a parent? This involves an inquiry not simply limited to whether the child
is in school, but also how much they are in school. On occasion it can also involve
consideration of the child's income and assets. Some ‘children’ earn significant
income or have significant assets in their own right.
The judge further explained what type of evidence would be required to establish entitlement to
support:52
Should a future child support application be advanced, I regard myself as seized of
that application. When or if it comes, I will expect that the evidentiary material to be
filed will comply in all respects with the Rules; that the application will commence
with complete and current financial information with respect to Ms. Felbel and any
child for whom support is sought and that it will be accompanied by complete and
reliable corroborative information concerning (among other things) the cost of tuition
and books, proof of course registration, courses completed, courses dropped, and if
relevant, why they were selected and/or not completed. Complete and up-to-date
transcripts should be furnished. Information about the past and present availability of
scholarships, bursaries, student loans or other government grants should be provided
together with a narrative description of a reasonable education plan including the
past, present and future components of that plan.
Thus while in law there always an onus on the applicant to adduce evidence about the adult
child’s education program, expenses and means, in order to establish that the child is a “child of
the marriage,” in practice if there is evidence of commitment and capacity of the student to
study, suitability of the program and relevant financial information to establish need for support,
there is a virtual presumption that support should be provided to a young adult during an initial
period of post-secondary studies. The more challenging questions are usually how much support
to be awarded, and how long it is it to last.
Evidence of the child’s financial situation, income and education record and plans may be best
be put before brought the court by having the child file an affidavit setting out information, or
51
52
[2007] M.J. 217 (Q.B. Fam. Div.), at para 5.
[2007] M.J. 217 (Q.B. Fam. Div.), at para 28.
18
this evidence could be an appendix to the affidavit of the custodial parent. 53 If there is a trial of
the issue, the child may be called as witness and cross-examined.54 The young adult should
supply information about:

Costs of the program, including tuition, books, supplies etc, and if appropriate
costs of residence, meals, travel to and from the program;

Eligibility for bursaries, grant and scholarships;

Nature and expected duration of the program, as well as about progress to date;

Income from employment or expected income from employment.
Eligibility for Support during a Post Secondary Program: The Farden Factors
As Paperny J.A. states in T. (P.) v. B. (R.), the “courts have articulated a variety of pertinent
factors to determine whether an adult child qualifies for support. Where the adult child is
pursuing an education, the courts often refer to the Farden Factors. 55” The Farden Factors are
the most commonly used set of considerations used to determine whether an adult child should
be awarded support while pursuing further education.56 The factors are articulated by Master
Joyce in the 1993 British Columbia case of Farden v Farden:57
The relevant circumstances include:
(1) 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;
(2) whether or not the child has applied for, or is eligible for, student loans or other
financial assistance;
(3) 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;
53
See e.g Razavi-Brahimi v. Ershadi, [2007] O.J. 3736, 43 R.F.L. (6th) 439 (Ont. Ct.J.), per Murray J,. and Lewi v
Lewi, 2006 CarswellOnt 2892, 28 R.F.L. (6th) 250 (Ont.C.A.).
54
See Mickle v. Mickle, [2008] O.J. 169 (C.A.).
55
T. (P.) v. B. (R.), 2004 CarswellAlta 906, 50 R.F.L. (5th) 206 (AB.C.A.)..
56
The factors have “now been accepted by courts in other jurisdictions including this Court in Olson v. Olson
(2003), 225 D.L.R. (4th) 735 (Alta. C.A.), and the Court of Queen's Bench in numerous cases including Wahl v.
Wahl, 2000 CarswellAlta 13, 2 R.F.L. (5th) 307 (AB.Q.B) at 307.
57
Farden v. Farden, 1993 CarswellBC 619, 48 R.F.L. (3d) 60 (BC.S.C.).
19
(4) the ability of the child to contribute to his own support through part-time
employment;
(5) the age of the child;
(6) the child's past academic performance, whether the child is demonstrating success
in the chosen course of studies;
(7) what plans the parents made for the education of their children, particularly where
those plans were made during cohabitation;
(8) 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.
Once the court has considered all of these factors, a decision will be made about the child’s level
of need of support and their eligibility. We will now discuss each of the factors in order to
examine the main issues considered in the cases that deal with child support for adults
undertaking post-secondary education.
1. The Child’s Actual Enrolment in a Full or Part - Time Course of Studies
The significance of whether a student is in full or part-time is in part dependant on whether the
proceedings are under the Divorce Act or the Family Law Act. The Ontario Family Law Act
requires that the child be “enrolled in a full time program of education” and therefore, in
proceedings under this Act, child support cannot be ordered for a young adult who is only
attending part-time. The issue of part-time studies is more complex in proceedings under the
Divorce Act. In cases under the Divorce Act where a child is only enrolled part-time or is waiting
for a suitable program to begin, support may still be ordered. As stated in Gamache v. Gamache
“a parent has an obligation to assist the parent on whom the child is dependent through a
reasonable transition period.”58 This includes a waiting period before a child is about to being a
post-secondary program. While the courts seem willing to order support during a transition
period, this period is not without limit. In Harder v. Harder, an eighteen year old young woman
58
Gamache v. Gamache, 1999 CarswellAlta 369, 49 R.F.L. (4th) 258 (AB.Q.B.) at para. 9.
20
who was employed full time but living at home in order to accumulate savings for future
education was denied support. Ryan-Froslie J. concluded that: 59
“[s]aving money for school and paying off debts does not constitute an "other cause"
as contemplated in the Divorce Act definition of "child of the marriage". Choosing
not to withdraw from her mother's care is not the same as being unable to withdraw
from that care.”
However, if the child is waiting for school to begin in the near future, then it is likely that
support will be ordered.
If the child is only attending school part-time, the judge will likely consider the amount of time
spend on the program, and the extent to which it is appropriate for the student to work part-time
and provide some, or all, of their own support. In cases where the child could assume a heavier
course load, has significant employment while additional attending school part-time, or lives on
their own, the court is less likely to grant support.
2. Student Loans or Other Financial Assistance
The second factor considered by Master Joyce was the child’s effort and ability to obtain
financial support for their education from government grants and loans, as well as scholarships.
It is clearly accepted that an adult child is expected to apply for any grants or scholarships, and
that they should be taken into account to reduce the obligation of a payor parent. More
contentious is the extent to which a child should be expected to take out loans, as courts struggle
to strike a fair balance between the child and the parent’s obligations. 60
59
60
Harder v. Harder, 2003 CarswellSask 454, 41 R.F.L. (5th) 69 (Sask.Q.B.).
See discussion in Selig v Smith, [2008] N.S.J. 250 (C.A.) 250 per Roscoe J.A. (at para. 20):
However, there is no hard and fast rule that student loans should be the last resort. In [some] cases ….the
child was expected to contribute the full amount of any available student loans. Each case depends on its
own particular facts and although the trend seems to be leaning towards determining the parents' ability to
contribute before resorting to student loans, it cannot be said that it is an error in principle … in a case
where the divorced parents' total income approximates $100,000 for a judge to assume that an adult child
will be expected to borrow to finance post secondary education. The higher the parents' income, the less the
student should be required to contribute. There is no exact right answer in these cases. So long as the
amount ordered is reasonable in the circumstances, this court should be slow to intervene. Here the trial
judge deducted one-half of the loans. If the trial judge had deducted one-quarter of the student loans or
none of them, that would likely have been seen as reasonable as well. The same can be said of the income
from employment of the student. There is a wide range of possibilities that fit within the reasonable
standard
21
In most cases not involving wealthy parents, the court will also require the child to accrue some
level of student debt. However, the courts have been sensitive to the fact that student debt is not
the same as support and they are unlikely to require that a child rely primarily on debt if a payor
parent was able to pay any support while the child was a minor. The courts are balancing the
parent’s obligations towards an adult child with an expectation that adult students make a real
contribution to their own education.
As recognized by the late Professor McLeod, “most courts are reluctant to allow a payor to avoid
child support by insisting the child maximize his or her contribution by student loans, since
student loans are just cost deferrals. When the child is finished school, the loans must be paid.”61
In the 2006 Ontario Court of Appeal decision in Lewi v Lewi, Juriansz J.A. observed that
“children should suffer as little as possible as a consequence of their parents separating.”62 Lewi
was not about student debt, but rather was a case about the use of a trust fund to help pay for
post-secondary education; as is more fully discussed below, the Court expected some use of that
the child’s trust fund, but it did not require the use of all of those funds in order to eliminate the
payor father of all of his responsibility. The analysis of the Court in Lewi would suggest that the
Court of Appeal may be sympathetic to the argument that the adult child should not be expected
to assume a large debt to absolve a payor parent of the duty of support.
While parents have a responsibility to provide support to adult children undertaking studies, this
must be balanced against the responsibility of young adults to contribute to their own education
in a way that reflects self-reliance and diligence.63 Further, the duty of children to contribute to
their education through loans and employment income is “gradually increased as they age and
advance in their studies [especially] where the parents have limited income levels.” 64
In the Saskatchewan case of Fernquist v. Garland, Klebuc J. proposed a balance between what
should be imposed on the parents and the child, suggesting that the cost to both the parents and
the child should be looked at over ten year period, and then the burden should be imposed on the
61
Rebenchuk v. Rebenchuk, 2007 CarswellMan 59, 35 R.F.L. (6th) 239 (Man.C.A.).
Lewi v. Lewi, 2006 CarswellOnt 2892, 28 R.F.L. (6th) 250, at para. 171 (Ont.C.A.).
63
Louise v. Scheuer, 1995 CarswellBC 1030, 15 B.C.L.R. (3d) 270 (BC.S.C.), per Boyle J.
64
Cook v Plante, [2007] O.J. 4459 (Ont. Sup. Ct.), at para. 17, per Kane J.
62
22
party who would suffer least over that amount of time. Klebuc J. suggested that the following
five questions ought to be considered65:
(1) Would the payment of child support leave the parent with a reasonable standard
of living having regard to the parent's age, health, and future needs? ...
(2) What are the likely future financial positions of the parent and adult child upon
the latter completing his or her studies? ...
(3) Will the parent have to borrow funds in order to provide support for the adult
child, and if so, what are the consequences to the parent in comparison to those of the
adult child if he or she obtained a student loan? ...
(4) What are the relative ages and work life expectancy of the parent and adult child?
(5) The time remaining until the adult child can be reasonably expected to gain
material earnings from his education...
The court should consider these questions and then: 66
...if the adult child lacks the ability to provide for her or his necessities and the
payment of child support would prejudice the parent more over time than a student
loan would prejudice the adult child, the adult child is required to secure available
student loans and use such other resources at his or her disposal to cover the cost of a
secondary education before looking to a parent for support.
In most cases of parents with limited financial means, children are granted support for their first
degree, and will be required to take on some level of debt during that period, and will have a
hard time seeing that support continued past that first degree. By contrast, cases where children
come from families with wealthy parents the courts were less likely to require that children
obtain student debt and are more likely to extend support past the first degree. 67 The case law
suggests that where parents are able to, they should see that their children are not burdened with
unnecessary debt. Further, in cases where older siblings had received support throughout their
education without having to go into debt, the courts were more likely to order support. The
expectations of the child and the parents will be discussed in detail later.
65
Fernquist v. Garland, 2005 CarswellSask 821, 22 R.F.L. (6th) 371 (Sask Q.B.).
Ibid. at para. 33.
67
See e.g. J.C. v A.M.M., [2007] O.J. 3887 (Ont. Sup. Ct.), per Mazza J. (court orders support for a medical degree
where parents successful lawyers)
66
23
There have also been cases in which the child has been denied support for failing to take the
effort to contribute to their own education and support. In Guillemette v. Horne, Helper J.A.
stated that “it is incumbent upon the judge determining the extent of that legal obligation to take
into account all relevant factors, including the adult child's ability to accept responsibility for his
or her own support.68” In Farden v. Farden, the nineteen year old child was pursuing his
education at “a leisurely pace”69 while making no real effort to obtain student loans or bursaries.
Further, he had made no effort to find part-time employment during the semester or full time
employment during the summers, which the court considered to be a reasonable amount of work
to require from him considering his course load. Doubting the child’s level of need, the court
denied him status as a “child of the marriage” who was unable to withdraw from parental
support.
The courts will usually require the child contribute to their own support through other financial
means and student debt. In most cases, the level of debt that children are expected to assume is
limited. The effort that the child demonstrates to contribute is also important to most judges in
considering whether this factor has been satisfied.
3. The Reasonableness of the Career Plans of the Child
In most cases the goal of support for adult children is to enable the child to become selfsufficient. The choice of post secondary program chosen by the child is likely to have a
significant impact on their future level of income and degree of self-sufficiency. Hence the
choice of program is often important to payor parents, who sometimes object to their children
undertaking certain program and object to support for them. In the 2003 Alberta Court of
Appeal decision in Olson v. Olson, Hunt J.A.70 approved of the 1970 case C. v. C.,71 where the
court stated: “When a child that is capable of further benefit from an education or other special
training which will fit her for an occupation in later years, such an education or course of training
should be looked upon as in the nature of a necessary of life.” This suggests that the courts will
require support for education or training programs that a child takes seriously and that have a
reasonable chance of contributing to a child’s future self-sufficiency.
68
Guillemette v. Horne, 1993 CarswellMan 56, 48 R.F.L. (3d) 229 (Man.C.A.).
Farden v. Farden, 1993 CarswellBC 619, 48 R.F.L. (3d) 60 (BC.S.C).
70
Olson v. Olson, 2003 CarswellAlta 254, 36 R.F.L. (5th) 196 (AB.C.A.).
71
C.v.C., 1970 CarswellAlta 31, 2 R.F.L. 388.
69
24
In some cases, payor parents do not approve of the children’s chosen field of study, but generally
this is not determinative of their obligation, especially at the stage of the first degree. As stated
by Smith J. in Evans v Evans, “while the [payor] may not approve [of the child’s] career choice,
[and where] it is not inherently unreasonable or far fetched, the [payor’s] disapproval, in itself,
[will] not relieve him of his support obligations.”72 When making support orders the courts
generally hold that where the child is serious about the program and that the field of study offers
a reasonable future of employment, the disapproval of the payor parent will have affect the
court’s decision. In Welsh v. Welsh, Quinn J. concluded:73
The attendance must be bona fide and, for that to be ascertained, I should think that
at least three criteria must be met by the child/student: firstly, does he or she have an
aptitude for the course of studies in question such that there is a reasonable likelihood
of academic success; secondly, is he or she pursuing the course of studies with
diligence; and, thirdly, is there a reasonable likelihood that the successful completion
of the course of studies will lead to gainful (and self-supporting) employment.
The factors noted by Quinn J. are what the courts usually consider in making the decision about
whether a young adult with interest in a particular field of study will be eligible for support.
In Pink v. Pink two young adult brothers were denied support to allow them to attend an
American junior college as it was determined that the “emphasis of their program is football,
and, from the record on this appeal, the future advantages and benefits to them of their studies
are highly speculative.”74 Similarly, in Hutchinson v. Hutchinson, a twenty-one year old woman
was denied support to allow her to train and compete in golf after “she testified that she [would]
need to spend the next three years practicing her golf game.75” Diamond J. concluded that the
claim that “practicing and playing golf [was] an extension of [the child’s] education [as being]
totally without merit. It is abundantly clear that [she] is no longer a ‘child of the marriage’.
Accordingly, support for [her] will be terminated.76” Where the program in question is unlikely
to contribute to the child’s future economic wellbeing, the court is unlikely to order support.
72
Evans v. Evans, 1998 CarswellSask 65, 35 R.F.L. (4th) 158, (Sask.Q.B.).
Welsh v. Welsh, 1998 CarswellOnt 4338, [1998] O.J. No. 4550, [1998] 79 O.T.C. 81 (Ont.Gen Div).
74
Pink v. Pink, 1991 CarswellMan 30, 31 R.F.L. (3d) 233 (Man.C.A.) at para. 3.
75
Hutchinson v. Hutchinson, 1996 CarswellMan 534 (Man.Q.B) at para. 9.
76
Ibid. at para. 10.
73
25
By way of contrast, in Wahl v. Wahl a young woman was granted continuing support in order to
attend a theatre training program as the court found that her “choice of studies [was] not
whimsical nor an attempt to put off studying a ‘real career’ ... [and that] there appears to be a
reasonable likelihood of employability.”77 Understandably, the courts are reluctant to allow
payor parents to turn to the courts to try to veto any reasonable educational and career choices of
a young adult. There appear, for example, to be no cases in which the courts have held that
attendance at any program at an accredited Canadian university or community college is not
worthy of support, though as discussed below, the courts continue to play a role in deciding how
many years of post-secondary education should be supported by parents.
4. The Ability of the Child to Contribute Through Part-Time Employment
An adult child will generally be expected by the courts to contribute support to their education
through summer employment and, in some cases, part-time employment during the school year,
with the expectation for contribution by the child gradually increasing as the child grows older.
Franks observes that “as a very general rule, children seem to be required to contribute
somewhere in the range of 25%-50% of the costs of education.”78 Support awards will then be
reduced by actual or imputed earnings.
Summer Employment
It is common for the courts to find that children should be working during summer breaks. As
noted with approval by Scott C.J.M. in Rebenchuk v. Rebenchuk from a commentary by Prof.
McLeod: 79
… Most courts assume a child will earn income during the summer … [they
should] contribute a "reasonable amount" of their total earnings to their education
rather than placing a more onerous burden upon them…
In most cases, the courts will require that children put most of their summer earnings toward
contributing to their education costs, though also recognizing that the child should be able to use
a portion of their earnings (usually in the range of 10%-25%) on discretionary spending.
77
Wahl v. Wahl, 2000 CarswellAlta 13, 2 R.F.L. (5th) 307 (AB.Q.B) at para. 39, per Johnstone J..
Aaron Franks, “Post-Secondary Education & the 'Twixters'” (2005), 24 Can. Fam. L. Q. 5.
79
Rebenchuk v. Rebenchuk, 2007 CarswellMan 59, 35 R.F.L. (6th) 239 (Man.C.A.) at para. 53-54.
78
26
In some cases the child’s income may be great enough that, combined with other resources,
support will be terminated, especially if the child is older. In the 1986 case of Law v. Law,
support was denied to a twenty-two year old young woman who was in the latter half of her
university program and she had been able to:80
[earn] $3,074.82 during 1984 and ... $4,800 by way of student assistance, ...[no]
evidence was submitted to establish her current level of expenses, [and no]
...explanation was given to prove her "inability to provide".
As a result, Fleury L.J.S.C. concluded that she “is capable of providing for herself and that
therefore she is no longer a ‘child of the marriage’”81 and is therefore no longer eligible for
support. In terminating support, Fleury L.J.S.C. also seemed to be influenced by the fact that the
young woman was in her early twenties and resisting having any type of relationship with the
payor parent.
Part-time Employment
Professor McLeod noted that “[f]ew courts expect adult children to work part-time while taking
full-time studies.”82 Indeed in Coghill v. Coghill Wright J. quoted with approval the statement of
Prof. Payne that “it is not appropriate to require a child to pursue part-time employment during
the academic year where that would interfere with the child's academic progress.”83 The courts
seem to appreciate that a child’s responsibility is to focus on and succeed at their educational
program, so the courts are generally reluctant to interfere with that goal by demanding that a
child work part-time during the school year. However, for children only attending school parttime or in their mid twenties and nearing the end of support, they may be required to work parttime during the school year, especially if parental resources are modest.
In dealing with the issue of part-time employment, the courts are careful to consider the
particular situation and abilities of the child that they are dealing with. In Wahl v. Wahl
Johnstone J. concluded that the child should not be required to work during the school year as
her program was demanding. Johnstone J. did “not find it unreasonable that [the child] does not
80
Law v. Law, 1986 CarswellOnt 284, 2 R.F.L. (3d) 458 (Ont.S.C.J.).
Ibid. at para. 6.
82
Rebenchuk v. Rebenchuk, 2007 CarswellMan 59, 35 R.F.L. (6th) 239 (Man.C.A.).at para. 54.
83
Coghill v. Coghill , 2006 CarswellOnt 3890, [2006] 27 R.F.L. (6th) 434 (Ont.S.C.J.). See also Mickle v. Mickle,
[2008] O.J. 169 (C.A.).
81
27
wish to work during the school term. She is desirous of channelling all of her energies into her
school work.”84 Similarly, in Louise v. Scheuer, Boyle J. took into consideration that “part-time
work is not medically advisable while the daughter is attending college full time”85 as she
suffered from health issues. In both of these cases however the court did require the two young
women to find summer employment as this would not detract from their studies. In Coward v
Coward86 the court took account of the fact that the daughter had been in a car accident, and held
that she would be excused from contributing if a doctor provided documentation.
Other Financial Resources
If a young adult has access to financial resources, other than income from employment,
bursaries, scholarships or student loans, for example from a trust fund or Registered Education
Saving Plan (RESP) , the courts will take this into account to reduce the obligation of parents to
support a child’s studies.
In Lewi v. Lewi,87 the two sons had access to a trust fund and securities provided for by their
paternal grandfather, though during the marriage it was expected that these assets would be a
“nest egg” that they could use for such purposes as buying a home. The motions judge did not
expect the boys to encroach on this capital. The Ontario Court of Appeal did not accept the
payor father’s argument that the capital assets should be fully exhausted before any contribution
was required from the father, but the Court took account of the capital fund to reduce though not
eliminate the father’s obligation to pay support. The Court of Appeal ruled that ss.3(2)(b) and 7
of the Child Support Guidelines require that the “means” of an adult child are to be considered in
setting the amount of support, and this includes capital assets and trust funds, with Juriansz J.A.
writing:88
Both s. 3(2)(b) and s. 7 of the Guidelines require that the means of the child must
be considered along with the means of the parents. Section 7, in addition, refers to
the contribution of the child, if any. I do not understand this to indicate a greater
expectation for the child's contribution under s. 7 compared to s. 3(2)(b). The court
has the discretion under both provisions to decide the amount the child should be
84
Wahl v. Wahl, 2000 CarswellAlta 13, 2 R.F.L. (5th) 307 (AB.Q.B) at para. 44.
Louise v. Scheuer, 1995 CarswellBC 1030, 15 B.C.L.R. (3d) 270 (BC.S.C.) at para. 26.
86
[2008] O.J. 375 (Ont. Sup. Ct.) per Rogers J..
87
Lewi v. Lewi, 2006 CarswellOnt 2892, 28 R.F.L. (6th) 250 (Ont.C.A.).
88
Lewi v. Lewi, 2006 CarswellOnt 2892, 28 R.F.L. (6th) 250 (Ont.C.A.), at para. 159..
85
28
expected to contribute. In my view, the amount of child support that a parent is
ordered to pay should be determined, as a general rule, on the expectation that a child
with means, in this case independent assets, will contribute something from those
means towards his or her post-secondary school education. The extent of the
contribution expected depends on the circumstances of the case. There is no standard
formula under either s. 7 or s. 3(2)(b).
The Court of Appeal took account of the boys’ summer earnings and capital, requiring the son
who was living at home with his mother to pay all of his educational expenses, and his brother
who lived in residence at university and had much higher costs, to cover one half of his
educational expenses.
5. The Age of the Child
It is expected that as children get older they will assume a greater responsibility for their own
support, and at some point they will be fully responsible. As age of the child increases, the onus
on the applicant to prove dependency of the child increases. This view was articulated in Martell
v. Height by Freeman J.A. of the Nova Scotia Court of Appeal, who observed that “[t]here is no
arbitrary cut-off point based either on age or scholastic attainment, although as these increase the
onus of proving dependency grows heavier.”89 The courts also recognize that education is more
important now than in the past for gaining remunerative employment, and hence there is a
greater need for support from parents. This was also noted by Freeman J.A. in Martell v.
Height:90 “[in] making [a] determination [for support,] the trial judge cannot be blind to
prevailing social and economic conditions: a bachelor's degree no longer assures selfsufficiency.” However, at some point the parental obligation of support will end, even if the
“child” is still attending a post-secondary program, a point made by another Nova Scotia Court
of Appeal judge, Chipman J.A, who commented that “the court must be careful not to be carried
away with claims on behalf of a would-be "hanger on" in perpetuity. Most of such cases involve
the perennial student....” 91
89
Martell v. Height, 1994 CarswellNS 45, 3 R.F.L. (4th) 104 (N.S.C.A.) at para. 8.
Martell v. Height, 1994 CarswellNS 45, 3 R.F.L. (4th) 104 (N.S.C.A.) at para. 8.
91
Yaschuk v. Logan, 1992 CarswellNS 64, 39 R.F.L. (3d) 417 (N.S.C.A..).
90
29
As children grow older, a higher level of responsibility for their own future should be required.
This point was also made in the recent Ontario case of Cook v Plante, where Kane J. wrote:92
It is not unreasonable under s. 7 to expect a university student to contribute a
gradually increased portion of their university costs as they age and advance in
their studies where their parents have limited income levels.
The age at which support will end for a child is not easy to determine, and will depend on a
number of factors, including the parents’ wealth, education and expectations while cohabiting.
Case law suggests that support for adult children is likely to be granted at least through a first
university degree or college program, until the child is approximately 21 or 22 years old. It is not
common for support to be extended past the age of 25 or to cover a graduate degree, though such
cases are occurring more frequently in recent years.93 It is still very rare the legal obligation for
court to order support into a child’s late twenties.
The courts have frequently emphasized that there is no definite limit in age for support to
terminate, as all of the circumstances must be considered. For example, Hoyt J.A. of the New
Brunswick Court of Appeal in 1994 in McGregor v. McGregor stated:94:
[A] child of any age may, depending on the circumstances, be a "child of the
marriage" while seriously pursuing his or her education. There is no arbitrary age at
which a child ceases to be a "child of the marriage" under the Divorce Act. Such a
determination, which often will be self-evident, must be made in each instance.
In the 2005 Saskatchewan case of Fergusson v. Kurylo, Ryan-Froslie J. wrote:95
Generally speaking, parents will remain financially responsible for a bona fide adult
student until the child has obtained a degree or certificate that equips him or her for
entry level employment in an appropriate field within a reasonable period of time.
Whatever course of study is chosen by the child, the length of time for which a parent
will be required by law to support that course of study will depend on the
reasonableness of the choice and the means and needs of the child and parent.
92
Cook v Plante, , [2007] O.J. 4459 (Ont. Sup. Ct.), , per Kane J.
See e.g Noseworthy v Noseworthy, [2008] O.J. 2703 (Ont. Sup Ct.) where Tulloch J. observed that “it is rare to
find cases that have extended support of children beyond the age of 25 or 26. As a guiding principle, , an accepted
test is to consider to what extent would these parents, if still living together, have continued to support their son.”
94
McGregor v. McGregor, 1994 CarswellNB 23, 3 R.F.L. (4th) 343 (N.B.C.A.).
95
Fergusson v. Kurylo, 2005 CarswellSask 167, 2005 SKQB 131, [2005] W.D.F.L. 2296 (Sask.Q.B.), quoted with
approval by Gunn J. in Hiebert v. Hiebert, 2007 CarswellSask 610 (Sask.Q.B.)..
93
30
In making the decision about when to terminate support, the courts will consider the age and
degree of engagement of the youth in his or her studies, as well as parental resources.
In both Hoadley v. Hoadley96 and Filliponi v. Filliponi97 support was denied two children at the
age of 26. In the 1996 Alberta case of Hoadley, a 26 year old son had decided to begin his first
university education program after working for several years. Nash J. found that the son was no
longer a “child of the marriage” and denied support, writing:98
[In] considering the definition of "child of the marriage", some consideration must
be given to the age of the individual who is in attendance at a post-secondary
institution. The older that individual, the greater the weight that should be
accorded the age. Otherwise, a divorced parent could remain legally obligated to
financially support the child for as long as the child was in attendance at a postsecondary institution, regardless of the child's age...
In the 1992 Ontario case of Filliponi the spouses’ son had been supported through a three
college program. He then worked for a time. The parties obtained a divorce when the son was 26
years of age, living with his mother, and again pursing post-secondary education, this time at
university. Charron J. concluded that the son could no longer properly be considered a “child of
the marriage.” She observed that “although [the son] does not appear to be totally self-sufficient
yet, the responsibility for his support cannot fall upon his parents. However, in the 2007 Ontario
case of Albert v Albert, the court ordered support for a 25 year old daughter who was pursuing
her third university degree.
Herman J. suggested that the first degrees, which the parents had
been prepared to support, had been less practically focused, but the third degree was a “more
practically-oriented program… [which] represents [a] reasonable step towards financial
independence,”99 and ordering that support would terminate when she finished the current
program. The court also emphasized the fact that the parents were relatively well off, and could
afford to provide this support, with the payor father having an income of $125,000 a year.
6. The Child's Academic Performance
96
Hoadley v. Hoadley, 1996 CarswellAlta 494.36 Alta. L.R. (3d) 294 (AB.Q.B.).
Filipponi v. Filipponi, 1992 CarswellOnt 259, 40 R.F.L. (3d) 296 (Ont.C.J., Gen. Div.).
98
Hoadley v. Hoadley, 1996 CarswellAlta 494, 36 Alta. L.R. (3d) 294 (AB.Q.B.) at para. 23.
99
Albert v Albert, [2007] O.J. 2964, 40 R.F.L. (6th) 203 (Ont. Sup. Ct.), at para. 54
97
31
An adult child who is failing to engage and succeed in post-secondary education may be
disentitled to support for that reason. When considering the degree of academic success required
for the continued support of an adult child, the courts place considerable weight on degree of
effort and the age of the child. The courts seem more willing to excuse academic difficulties
when children are in their later teens or early twenties. In Richardson v. Richardson, Misener J.
ordered interim support for a twenty-one year daughter who was enrolled in only three courses at
university, less than the standard five and even less than the three and a half needed for full time
enrolment. He concluded that “a condition that the child obtain a passing grade at university in
at least three and one-half courses each year without fail ... is not, in itself, a ground for declaring
that she is no longer a ‘child of the marriage’ as defined by the Divorce Act.”100 Instead, he
concluded that where: 101
[a child] is unable to withdraw from [parental] control ... because she is pursuing a
post-secondary school education... [t]here is no question but that ... the law imposes
the obligation ... on parents to continue to provide for the support of their adult
children in that pursuit when the means to do so is available”
The court in Richardson was also influenced by the fact that the daughter’s part-time status as a
student was at least partially due to the fact that she suffered from a major depressive illness.
The courts have a generally sympathetic approach to the academic difficulties of very young
adults, recognizing that not infrequently their difficulties are related to emotional distress from
their parents’ separation. The judicial tolerance for lack of commitment and success in an
educational program, however, clearly wanes as children get older. In the recent Manitoba Court
of Appeal decision in Rebenchuk v. Rebenchuk, where Scott C.J.M. wrote:102
For undergraduate degrees, marks are rarely mentioned unless the child is doing very
badly at school. Academic performance does become more significant when the child
is pursuing education beyond the undergraduate-degree level.
This suggests that children ought to be allowed to at least have the opportunity at pursuing a
bachelor’s degree or diploma program. However, as the age of the child increases, the courts take
a harder look the child’s abilities, engagement, effort and future potential.
100
Further, even with
Richardson v. Richardson, 2002 CarswellOnt 2006, 30 R.F.L. (5th) 390 (Ont.S.C.J.). See also Hyde v. Lang,
1996 CarswellOnt 1755, 22 R.F.L. (4th) 317 (Ont.C.J. Gen Div).
101
Ibid. at para. 19.
102
Rebenchuk v. Rebenchuk, 2007 CarswellMan 59, 35 R.F.L. (6th) 239 (Man.C.A.) at para. 55.
32
younger adults, the must be some level of engagement and success in a post-secondary program
in order to be eligible for support; merely being registered in a program is not sufficient.
7. Plans and Expectations of the Parents During Cohabitation
The courts recognize that the separation of parents can have serious, negative effects on the
economic well-being of children, and try to minimize these effects. This judicial approach is
reflected in the statement of Juriansz J.A. in the 2006 Ontario Court of Appeal decision in Lewi
v. Lewi: 103
It is fundamental that the lifestyle of children should suffer as little as possible as a
consequence of their parents separating. If the parents would have paid the
educational expenses of the children had they not separated, then, all things being
equal, the children should be entitled to expect they would pay them even though the
parents have separated.
Juriansz J.A. was careful to qualify this statement, however, by recognizing that parents usually
have increased economic challenges as a result of the separation, and their ability to pay support
must be taken into account, as well as the ability of young adults to contribute to their own
education. In Lewi the Court of Appeal took account of the earnings of the children as well as
assets that they had received as gifts from their paternal grandfather, though the Court did not
require that the children deplete all of their assets in priority to expecting any contribution from
the father. The Court directed that the older son, who lived with his mother, to pay all of his own
educational expenses, while requiring the younger brother, who had higher costs as he studied
away from home, to pay one half of his university expenses, though continuing child support for
the mother as she maintained a residence for them.
To the degree that it is reasonable, the courts take account of expectations and decisions made
during cohabitation regarding the level of support that will given to the children. This point is
articulated by Chipman J.A. of the Nova Scotia Court of Appeal in Yaschuk v. Logan: 104
an education that will fit a child for a career can be properly regarded as a necessity.
This is particularly so in a family, such as this, where the parents have in the
upbringing of the children established an expectation that higher education would be
provided. The means and circumstances of the parents must be carefully considered.
103
104
Lewi v. Lewi, 2006 CarswellOnt 2892, 28 R.F.L. (6th) 250 (Ont.C.A ) at para. 171.
Yaschuk v. Logan, 1992 CarswellNS 64, 39 R.F.L. (3d) 417 (N.S.S.C.)at para. 59.
33
The court must also consider the child's aptitude and general fitness to pursue higher
education, and to what extent.
In Yaschuk v. Logan, Chipman J.A. ordered continued support for a twenty-one year old
daughter who had always lived with the custodial parent and was in the last few years of her first
undergraduate degree. The court also considered that “the [payor parent] had indicated to [the
daughter] after the separation that he would ensure that she would complete her education and
would not have to worry about finances.”105
Similarly in Achkewich v. Achkewich, Rooke J. denied an application by a highly educated father
to reduce or terminate support for his children. A central issue was whether the twenty-one year
old daughter should be given support in order to complete the last two years of her undergraduate
degree. Rooke J. stated106:
... Mr. Achkewich is one of the most educated (in terms of degrees) persons who has
ever appeared in front of me... I can think of no better person to be an advocate for
encouraging [parents] to support their children... to a first four year maximum term...
There is no person better to encourage parents, after separation, to hope that their
children, notwithstanding the separation, notwithstanding the blight and the negative
aspects of the separation, to go on to obtain education... It should be [the child’s]
right if they are in full-time attendance. If they are serious students, maintaining
reasonable marks and working at it, it should be their right and it is clear from my
direction that is a condition in this case.
In the recent Ontario case of J.C. v A.M.M. Mazza J. ordered continued child support for a 23
year woman who was enrolled in first year medical school, and concluded that her “decision to
pursue her medical career is sufficient cause to prevent her from withdrawing from her parents’
charge.” In coming to this conclusion, the judge took account of the fact that both of the parents
were successful lawyers:107
I accept … that the parties, given their successful, lucrative legal careers, would
have similar high expectations of their children. Also, given the fact that they both
attended post graduate studies from which evolved their respective professions, it
stands to reason, in my view, that they would expect and encourage the same kind
of level of achievement from their children if they demonstrated such a capacity.
In the case of E.C., her education has been uninterrupted and continuous and her
105
Ibid. at para. 58.
Achkewich v. Achkewich, 1998 CarswellAlta 1275, 220 A.R. 385 (AB.Q.B.).
107
[2007] O.J. 3887 (Ont. Sup. Ct.),at para. 30.
106
34
graduation to medical school within the context of her academic capacity appears
to be a logical evolution.
These cases suggest that a minimum expected duration of support is established by a parent’s
own level of education. If the children have the desire and ability to pursue the same level of
education as their parents and there is the reasonable ability of the parent to provide support, that
support should not be denied. It should be noted that the courts have only considered the level of
education of parents in a positive sense in order to help justify granting support; support has
never been denied to a child whose parents did not have a similar level of education.
8. Termination of Relationship with Parent by Child
The last of the factors that were considered by Master Joyce in Farden v. Farden was whether
support should be terminated if the child has effectively ended the social and emotional
relationship with the parent from whom support is being sought.
In cases involving support for adult children, s.3(2)(b)(ii) of the Child Support Guidelines gives
the court the authority to determine “the amount [of support] that the court considers appropriate,
having regard to the condition, means, needs, and other circumstances of the children who are
entitled to support.” This broad language has been interpreted to allow a court to consider the
child’s conduct and reduce or terminate the support order if the court finds it appropriate. The
courts, however, will consider the reasons for a child’s estrangement from the payor parent, and
are very reluctant to terminate support based on the negative attitude of an adult child towards
the payor parent.
In cases where the estranged parent has been abusive to the child, then the court will not attempt
to foster a relationship with that parent as a condition of receipt of support. In a 1997 Alberta
case, Veit J. stated that to require from the child:108
maintenance of a good relationship with a parent ... who was physically or sexually
abused by [that] parent, and who therefore ...did not wish to maintain a relationship
with that parent [and to see that child] disentitled to financial support from that
parent to undertake a university education; .... The result would be to undermine the
very intention of Parliament in requiring parents to support their children. Therefore,
108
James v. Morris, 1997 CarswellAlta 588, (AB.Q.B.).
35
dealing only in this case with the situation of adult children, one can say that an adult
child is not required to maintain a good relationship with a parent in order to obtain.
In the case of abuse, any expectation of the child maintaining a civil relationship with that payor
parent is removed. As recognized by Veit J., that would risk forcing children to make an unfair
choice about whether to try fostering a relationship with a parent that they have every right to
reject or to get funding for university.
In cases where the child’s rejection of a payor parent cannot be justified by a history of parental
abuse or neglect, there may be some basis for arguing for a reduction or elimination of the
support obligation, as recognized by Fleury L.J.S.C. in 1986 in Law v. Law:109
Where... a mature child unilaterally terminates a relationship with one of the parents
without any apparent reason, that is a factor to be considered by the trial judge in
determining whether it would be "fit and just" to provide maintenance for that child.
A father-child relationship is more than a simple economic dependency. The father is
burdened with heavy financial responsibilities and the child has very few duties in
return. It seems reasonable to demand that a child who expects to receive support
entertain some type of relationship with his or her father in the absence of any
conduct by the father which might justify the child's neglect of his or her filial duties.
As indicated above by Fleury L.J.S.C., in order for this factor to influence the court’s decision,
the child’s rejection of a parent has to have been a mature and independent decision, and not the
result of the conduct or attitude of the payor parent. Where the child was very young when the
parents separated and has had little contact since separation, the court is unlikely to find that the
child unilaterally and independently terminated the relationship.
In Colford v. Colford, a twenty year old son had seen little of his father since the parents
separated when the boy was eight. The father remarried and had other children, and the mother
had effectively alienated the child from his father. When the boy was 16 years of age he wrote
his father a very vituperative email saying, including such comments as:110
"You're f----d. Good night and have a good life with your kids, your wife and
whatever the f--- else you have. Unfortunately, you have lost your morals, pride
and your SON."
109
110
Law v. Law, 1986 CarswellOnt 284, 2 R.F.L. (3d) 458 (Ont.S.C.J.) at para. 5.
Colford v. Colford , 2005 CarswellOnt 1527, [2005] O.J. 1537 (Ont.S.C.J) at para. 55-56.
36
"F--- YOU AND YOUR WIFE, I HAVE A FULL FAMILY AND IT DOESN'T
INCLUDE YOUR SORRY A--." He said, "I don't care where you live, what you
do, who your kids are. Losers are not part of my club. If you haven't realized you
have been replaced."
Shortly thereafter the father stopped paying support. At time of the application of the father to
terminate support the son was twenty years old and had not had contact with the father for a few
years. Goodman J. ordered support, concluding:111
I am not satisfied that Tyler rejected his father "for no good reason" or that it was
simply a "unilateral rejection" by him. I keep in mind Tyler's age when his father
moved abroad... I conclude that behind this hateful and outrageous rant of a son to
his father lays a great deal of hurt. I am not in a position to conclude, on the evidence
before me, that this young man rejected his father for no good reason... I do not lay
the cause of the lost relationship at Tyler's feet.
Because the son had been influenced by the mother in rejecting his father, Goodman J. was not
prepared to hold the son responsible, and did not terminate support.
In cases where the court has found that the custodial parent has had a major contribution to
breakdown of relationship between the adult child and the estranged parent. As discussed earlier
in this paper, in these circumstances, the court can invoke s.3(2)(b)(ii) of the Child Support
Guidelines to alter the method by which support is determined; support which would have been
paid to the custodial parent may be paid directly to the adult child for such costs like tuition,
residence or books.
In Colford v. Colford112, the fact that the child resided at university and that the mother had
contributed to the breakdown in the relationship between the son and the father prompted
Goodman J. to order support payment be made directly to the child. By redirecting payment of
support to the child directly, the courts are able to effectively cut off support to the alienating
parent while protecting the child’s interests, and hopefully making the child appreciate who is
providing the support and improving the relationship between the child and the payor parent as a
result.
111
Colford v. Colford , 2005 CarswellOnt 1527, [2005] O.J. 1537 (Ont.S.C.J) at para. 97.
Colford v. Colford , 2005 CarswellOnt 1527 (Ont.S.C.J) ; see also Rosenberg v. Rosenberg , [2003] O.J. 2962
(Ont S.C.J), per Cahpnik J.
112
37
When support is denied to an adult child, it is rarely based solely on the rejection of the payor by
the child; if other factors indicate eligibility then this factor would not in itself terminate that
finding. Instead, the rejection is weighed along with other factors to reach a conclusion regarding
the child’s eligibility to support. In Wahl v. Wahl, Johnstone J. observed that: 113
it is clear from these cases that the quality of the parent/child relationship rarely
determines the matter. It is but one of the "failing" factors; that is, there must be
others in addition to it, unless the circumstances are extremely grave.
In Johnson v. Johnson two brothers, aged 21 and 23, had completely rejected their father.
Although the father had limited involvement with the boys while the family lived together and
bore some responsibility for the situation, Wood J. concluded that responsibility for the
estrangement rested primarily with the sons. The judge decided that there should be no support
for the older son who was in graduate school, but that the younger son should have support until
he completed his B.A., observing:114
most of the so-called Farden factors would ... favour a continuation of support [for
both sons.] However... the level of rejection of the applicant by his sons is so
significant that it must be reflected in any order made.
The cases to which I have been referred, have all had somewhat binary results.
Either the rejection was so complete that support ceased or the threshold was not met
and support continued. In this case I believe that an approach seeking a middle
ground is more appropriate. ... In my view continued payment of support at [a
reduced level] for each child to the end of one post-secondary degree would strike an
appropriate balance between these competing results….
It would also acknowledge the strong obligation to pay support where positive
findings on almost all of the so-called Farden factors are made. On the other hand it
would reflect the fact that while the [father] is not without fault, his actions do not
justify the degree to which the boys have rejected him.
In Pepin v. Jung, Linhares de Sousa J.115 was “not convinced on the case law that parental
rejection alone is determinative of the matter unless the circumstances are ‘extremely grave,’ as
evidenced by clear cruelty by the child towards the parent.”
In one of the few cases in which children’s conduct affected their entitlement to support,
Lampron v Lampron, the two children aged 18 and 20 years refused to have anything to do with
113
Wahl v. Wahl, 2000 CarswellAlta 13, 2 R.F.L. (5th) 307 (AB.Q.B). at para. 67.
Johnson v. Johnson, 2004 CarswellOnt 3512, 9 R.F.L. (6th) 380 (Ont.S.C.J.), at para 16-18.
115
Pepin v. Jung, 2003 CarswellOnt 1760, 39 R.F.L. (5th) 383 (Ont.S.C.J.).
114
38
their father, and wrote him a number of letters making clear that they did not want a relationship
with him and refusing him information about their academic progress, including one that stated
(in translation):116
This is our final decision, we don’t want to see you or hear from you and we don’t
want you to meddle in our lives in any way. Because you pay our financial upkeep
you think you ‘own’ us. So keep you money, we can survive without you.
In granting the father’s application to terminate support, Manton J. observed that adult children
are at least obliged to keep a payor parent informed of their progress in school, and engage in
“some sensible discussion” with him about their plans, and concluded:117
If the father is not to occupy part of their lives and his children who have attained
the age of majority will not speak to him they do not deserve to be supported by him.
They said themselves that they can support themselves and that is what they will
have to do from now on.
I find the mother is partly responsible for the children's attitude towards their
father and that she did very little to encourage the children to speak to their father.
In dealing with the issue of parental rejection, the courts not infrequently grant the support order
but also encourage the child to maintain a “civilized relationship” with the estranged parent, for
example by providing information about progress in their studies. In these cases the courts leave
open the option that the payor parent may reapply for termination of the order if the child fails to
communicate with the payor parent as the court has ordered. Alternatively the court may set a
review date to make clear that if the child does not re-establish a “civilized relationship” with the
payor parent, support may be terminated. Such orders are made by the courts in an effort to see
the child still receives the support that they otherwise need and that the child will initiate an
effort to repair, or at least acknowledge, the relationship. An example of this is provided by
Whitton v. Whitton, where Finlayson J.A. warned:118
If [the child] continues to refuse to engage in any sensible discussion with [her
father,] on the matter of her future education, the appellant's only recourse would be
to pursue a parallel proceeding, already instituted, to have the quantum of her
maintenance reviewed by the court.
116
Lampron v Lampron, [2006] O.J. No. 1972, 29 R.F.L. (6th) 307 (Ont. Sup. Ct.). Translation in Philip Epstein &
Ilana Zylberman, “Support for Adult Children in Cases of Estrangement: The Parent as Wallet,” Law Society of
Upper Canada, Special Lectures 2006: Family Law (Toronto: Irwin Law, 2007) 269. See also Dalep v. Dalep, 1987
CarswellBC 553, 11 R.F.L. (3d) 359 (BC.S.C.); and Moore-Orlanski v Johnston, 2006 CarswellSask 359.
117
Lampron v Lampron, [2006] O.J. No. 1972, 29 R.F.L. (6th) 307 (Ont. Sup. Ct), at para 5 & 6.
118
Whitton v. Whitton, 1989 CarswellOnt 265, 21 R.F.L. (3d) 261 (Ont.C.A.).
39
That approach was echoed in Colford v. Colford, where Goodman J. warned that “if [the child]
does not provide the required information ... then [the payor parent’s] contributions shall
cease.”119
There are differing views about how the courts should deal with cases in which adult children
reject payor parents without good cause. This controversial topic was the subject of a 2006
article by Philip Epstein and Ilana Zylberman, “Support for Adult Children in Cases of
Estrangement: The Parent as Wallet.”120 As the title implies, they argue that the courts do not
take sufficient account of the unjustified refusal of some adult children to have anything to do
with their estranged payor parents while expecting them to provide continuing support. They
conclude that that it is “not unreasonable to expect that children having reached the age of
majority, will take some responsibility for their actions and their relationships” and advocate that
courts should undertake a “stricter review” of estrangement cases, including terminating support
more readily. In our view, the present narrow judicial approach is appropriate. While some of
these cases are heart-breaking for payor parents, the courts recognize that the rejection of a payor
parent is invariably a reflection of the bitterness of the separation and the attitudes of an
alienating custodial parent. While it is clearly desirable for the courts to take an aggressive
approach to cases of alienation when children are young, if there is not appropriate intervention
before the children reach adulthood, termination of support will only serve to further harm the
economic future of the children, who have already suffered much due to the alienating conduct
of the custodial parent. With adult children estranged from a payor parent, the approach of
gentle but firm judicial encouragement of the establishment of a “civilized relationship” is also
most likely to encourage a better long term relationship between the adult child and the payor
parent, without jeopardizing the long term economic future of the child.
Establishing Independence & Re-establishing “Child of the Marriage” Status
Adult children lose entitlement to support if behaviour establishes the intention of the child to
become independent and remove themselves from parental control, for example by moving out
of the parental home and becoming self-sufficient. However, up to a point, the courts will allow
119
Colford v Colford 2005 CarswellOnt 1527, [2005] O.J.1537 (Ont. Sup. Ct.)at para. 6.
Philip Epstein & Ilana Zylberman, “Support for Adult Children in Cases of Estrangement: The Parent as Wallet,”
Law Society of Upper Canada, Special Lectures 2006: Family Law (Toronto: Irwin Law, 2007), p. 233-271.
120
40
the adult child who has become independent to be reinstated as a “child of the marriage” and
again become eligible for support.
The case law establishes that it is possible for a child to take a “break” from being under parental
support. Viet J. finds that “there is nothing in the Divorce Act to suggest that a child may not
move from being a “child of the marriage” to being outside that category and back again.”121 In
his paper “Support for Adult Children,” Terry Hainsworth concludes that:122
An interruption for medical reasons may be excused. In N. (P.F) v. N. (A),[ (1994), 6
R.F.L. (4th) 113, 160 A.R. 1 (Alta. Q.B.) at 4 at 117 [R.F.L.]] the 17-year-old girl
was out of school for a semester due to her pregnancy. A delay in enrolling in school
for economic reasons may be excused.[ Mitchell v. Mitchell (1992), 41 R.F.L. (3d)
443, 103 Sask. R. 278 (Sask. Q.B.).] A hiatus to travel will not preclude a child from
recovering its lost status.[ Keen v. Keen (1990), 30 R.F.L. (3d) 172, 89 Sask. R. 114
(Sask. Q.B.).]
As indicated by Hainsworth, it is possible for children to be reinstated to the status of “child of
the marriage” after taking a hiatus for medical reasons, travel, or delay of enrolment while
earning income.
In the recent Ontario case Haley v. Haley, Pazaratz J. considered the amount of time for which
the child withdrew and the level of self sufficiency during that withdrawal as being factors that
should determine whether or not the child should be able to return to the status of “child of the
marriage”. Pazaratz J. noted that: 123
In Lawless [v. Azaro] the court found that a three year hiatus for each of two
daughters was sufficient to relieve the father of responsibility for paying ongoing
child support once they return to school. Both daughters had displayed significant
independence during the gap. One of them had lived with a boyfriend ... [and] both
had worked extensively before deciding to return to school.
Pazaratz J. concluded that the child in question could return to the status as “child of the
marriage” after a two year hiatus as124:
[u]nlike some of the previously mentioned cases in which children were deemed to
have attained "permanent" independence by virtue of lengthy periods of world travel
121
N. (P.F.) v. N. (A.), 1994 CarswellAlta 385, 6 R.F.L. (4th) 113 (AB.Q.B.).
Terry Hainsworth, “Support for Adult Children” (1999) 17 Can. Fam. L. Q. 6.
123
Haley v. Haley, 2008 CarswellOnt 369, [2008] 293 O.J. (Ont.S.C.J.).
124
Ibid. at para. 33, 36.
122
41
or a commitment to new spousal relationships, the evidence suggests Anthony went
through a relatively short period of trying to organize his life and devise a realistic
plan for the future...
I further conclude that the approximately two years he was out of the school system
while refining and attempting to implement an educational plan -- including an
unsuccessful attempt to save some money -- should not disentitle Anthony from
reinstating his status as a “child of the marriage” under the Divorce Act.
On the other hand, in Randolph v. Randolph, Byers J. concluded that a twenty-two year son
should not be reinstated to the status as “child of the marriage,” as he was found to have
withdrawn from parental support in such a manner that it was not appropriate to reinstate him as
a child when he returned to school:125
Mr. Randolph's legal obligation to pay support stopped when Scott left school against
his advice, got a full-time job, and bought a car. Scott will soon be 22 years of age.
He is a grown man and has demonstrated the will to make his own decisions about
his own future. He must now live with the consequences of those choices.
When the question of reinstatement arises, the courts consider:

Time spent independent. The case law suggests that time over two years may result in an
unsuccessful attempt to be reinstated as a child.

Living arrangements while independent. If the child is living in a common law
relationship then it will be more difficult to be reinstated. In Haley v. Haley, the child was
still living with relatives in another city, which indicated a limited level of independence;

Employment while independent. If the child’s level of employment while on hiatus is
such that they could be considered to be reasonably supporting themselves then the child
will have more trouble reinstating status as a child; and

Intentions while independent. In Haley v. Haley, significant weight was placed on the fact
the son was still making decisions about what he wanted to do with his future. It seems
that if the child has made a clear about their future that does not include education, then
they will have more trouble again seeking parental support.
125
Randolph v. Randolph, 1991 CarswellOnt 305, 34 R.F.L. (3d) 444 (Ont.C.J.).
42
Quantum: C.S.G. ss. 3(2) and 7
Once the court has determined that the child qualifies as a “child of the marriage,” the amount of
support that is to be paid must be determined according to the Child Support Guidelines s.3(2)
which deals with children over the age of majority. The “standard Guidelines approach” under
s.3(2)(a) is for the payor to pay the applicant the Table amount plus a portion of the s. 7 expenses
of post-secondary education. If the court does not consider this “approach” for determining the
quantum of support “appropriate,” under s.3(2)(b) the court has discretion to set the amount of
support that it consider “appropriate” having regard to the circumstances of the child, and the
financial ability of each spouse to contribute. Section 3 of the Guidelines makes clear that it is
the “approach,” to support, based on the table amount adjusted by special and extraordinary
expenses, and not the amount of support that the court must consider “inappropriate” if the court
is to depart from the Guideline approach. Thus the presumptive amount that should be paid by a
payor to the other parent is the table amount under s. 3(2)(a) plus a share of the “special”
expenses under s. 7 for post-secondary education.
The presumptive deference to the Guidelines “approach” was explained by the Ontario Court of
Appeal its 2006 decision in Lewi v. Lewi, where Juriansz J,A. wrote:126
[127] Section 3(2) provides two ways of determining the amount of child support
for a child of majority age. Under s. 3(2)(a), the amount of support for a child over
the age of majority is calculated in exactly the same way as that for a minor child.
The opening words of s. 3(2)(b) indicate that the amount determined by applying
s.3(2)(a) is the presumptive amount. Section 3(2)(a), by adopting the same approach
for children of majority age that applies to minor children, fosters predictability,
consistency and efficiency in the resolution of disputes concerning the amount of
support for children of majority age.
[128] Section 3(2)(b) only comes into play "if the court considers that approach to
be inappropriate". It is apparent that the word "approach" was chosen with care, as
the word "amount" is used six times in the section. In this way, s. 3(2)(b) differs from
s. 4, which provides the court with discretion to depart from the "amount"
determined under s. 3 where it considers that amount to be inappropriate. The words
"that approach" refer to the technique dictated by s.3(2)(a) - namely applying the
Guidelines "as if the child were under the age of majority." I will refer to that
technique as the "standard Guidelines approach." Before resorting to its discretion
under s. 3(2)(b), the court must conclude that it is inappropriate to apply the
Guidelines as if the child who is actually of majority age were a minor.
126
2006 CarswellOnt 2892, 28 R.F.L. (6th) 250 (Ont.C.A.), at para 127 – 129.
43
[129] The word "approach" makes it clear that the court cannot depart from the
application of the Guidelines simply because it considers the "amount" determined
under s.3(2)(a), i.e., the table amount or additional expenses under s. 7, to be
inappropriate. It must be satisfied that the standard Guidelines approach is
inappropriate; clearly an exceptional situation rather than the rule. This further
promotes predictability, consistency and efficiency in family law litigation.
Although in paragraph 129 Juriansz J.A. uses the word “exceptional” to describe situations in
which a court should depart from the “standard Guidelines approach” of s.3(2)(a), it is clear both
from the actual decision in Lewi and from subsequent case law that the Court of Appeal was
really indicating that there is an onus of persuasion on the party who wants a judge to depart
from the standard approach.127 The characterization in paragraph 127 of s. 3(2)(a) as the
“presumptive amount” is more preferable. In fact, the situations in which such departure will
occur are quite common.
As occurred in Lewi, the standard Guideline “approach” is likely to be inappropriate in the not
uncommon situation where an adult child resides away from home at a post-secondary institution
for a significant portion of the year. If the child is no longer residing with the custodial parent for
much of the year, then the custodial parent’s expenses are decreased while that child is away. If
the Guidelines approach is followed when the child is away much of the year, this would result
in the payor parent essentially paying for the upkeep of the custodial parent’s home instead of
going towards support for the child. Typically, as in Lewi, if a child is only spending three or
four months of the year with the residential parent, that parent will only receive 1/3 or 1/4 the
Table amount for that child (and of course the Table amounts for any children still living at
home), while the payor will also be required to pay a portion, or all, of the costs of postsecondary education.
The standard Guidelines approach may also be considered inappropriate in cases in which the
child has income that they can, or should, be contributing to their support. Sections 3(2)(b) and 7
of the Child Support Guidelines require that the “means” of the child should be taken into
consideration in calculating the quantum of support where the guidelines approach has been
found to be inappropriate.128
127
128
See e.g J.C. v AM.M., [2007] O.J. 3887 (Ont. Sup Ct.)
Ibid.
44
Further, the Guidelines approach may be inappropriate where the custodial parent continues to
have a negative influence over the child in undermining the child’s relationship to the payor
parent. In these cases the court can divert the needed support from going to the custodial parent
instead allow the payor parent to contribute by paying directly for tuition or special expenses.
This effectively cuts off the alienating parent from any direct benefit from the payor parent. In
Wesemann v. Wesemann Martinson J. ordered that the payor parent make support payment
directly to the child:129
[The Payor parent] wishes to remedy [a distant relationship between him and the
child] and views the direct payment of child support as providing a psychological
link...[The custodial parent] wishes to have the payments made directly to her... In
the particular circumstances of this case, it is appropriate that the payments be made
directly to Darren.
In determining the best way to assess whether or not the Guidelines approach is appropriate, in
the recent Ontario case of Haley v. Haley, Pazaratz J. wrote:130
The best approach, it seems to me, and one now widely used, is summarized by
James C. MacDonald, Q.C. and Ann C. Wilton, Child Support Guidelines : Law and
Practice, 2nd ed., vol. 1 (Toronto: Carswell, 2004) (at pp. 3-11, 3-12):
... The usual Guidelines approach is based on factors that normally apply
to a child under the age of majority; that is the child resides with one or
both parents, is not earning an income and is dependent on his or her
parents. It is also based on the understanding that, though only the
income of the person paying is used to calculate the amount payable, the
other parent makes a significant contribution to the costs of that child's
care because the child is residing with him or her. The closer the
circumstances of the child are to those upon which the usual Guidelines
approach is based, the less likely it is that the usual Guidelines
calculation will be inappropriate. The opposite is also true. Children over
the age of majority may reside away from home and earn a significant
income. If a child is not residing at home, the nature of the contribution
towards the child's expenses may be quite different. ...
The most important considerations identified in this passage are the child’s place of residence,
the nature of the payor’s contribution, and the child’s income. It most cases, once the life
situation of the adult child has changed significantly from the situation before high school
Wesemann v. Wesemann (1999), 49 R.F.L. (4th) 435 (BC. S.C.) at para. 44 – 46.
2008 CarswellOnt 369, [2008] 293 O.J. (Ont.S.C.J ) at para. 30. This approach was also endorsed in Canada v
Canada-Somers,[2008] M.J. 164, 51 R.F.L. (6th) 262 (Man C.A.)
129
130
45
graduation, then the court will likely find that guidelines approach is no longer an appropriate
method of support.
“Reasonable Post-secondary Expenses”
What will be a “reasonable” expense for post-secondary education will depend on many factors,
including the nature of the program, the means and expectations of the family, and whether it is
“reasonable” for the child to attend university away from home. The reasonable expenses should
always include tuition, compulsory student fees and books, provided the applicant has adduced
evidence of these costs. The cost of a computer is increasingly regarded as a “reasonable
expense,”131 though a computer it may not be included if the family’s means are limited and it is
explicitly required for the program.132
In its 2008 decision in LaRue v LaRue, the Ontario Court
of Appeal upheld a decision that included monthly bus passes, telephone and internet, food and
household supplies, and laundry and clothing costs during the school year.133
In some cases a central issue is whether it is reasonable for a child to live away from home and
incur expenses for residence, a meal plan and travel. If the child is enrolled in a program that is
not available within a reasonable commuting distance from the home of the custodial parent
these expenses will be reasonable, and if the family income is relatively high, it may be
appropriate for support to include the costs of a residential university program.134 Difficult issues
arise if there is a program within a reasonable distance but the child prefers to attend a similar
program at a distance; resolving this issue requires the court to consider of whether the more
distant program is “better” for the student, as well as consideration of whether parental income
and life style makes living away from home “reasonable.” 135
131
See e.g. McMahon v Hodgson(2002), 25 R.F.L. (5th) 102 (Ont. S.C.J.); and Haley v. Haley, 2008 CarswellOnt
369, [2008] O.J. 293 (Ont. Sup. Ct.J.) .(computer expenses allowed)
132
See e.g Stewart v Stewart, 2006 ABQB 668, 2006 CarswellAlta 1222 (Q.B.) (computer not allowed)
133
LaRue v LaRue, [2008] O.J. 1146 (C.A.)
134
For a case where such expenses were allowed see e.g. Colford v Colford, 2005 CarswellOnt 1527, [2005]
O.J.1537 (Ont. Sup. Ct.)
135
See e.g Coranso v Simms (2002), 33 R.F.L. (5th))301 (N.S.C.A.); Hyatt v Whitney (2002), 28 R.F.L. (5th) 366
(Ont. S.C.J.)and Watts v Enns, (2000), 13 R.F.L. (5th) 210 (Sask. Q.B.) (expense for attending university away from
home not allowed)
46
Costs of travel may be considered reasonable expenses; for a student living at home this may be
the cost of a bus pass, or perhaps the costs of a car and parking.136 The cost of a car is more
likely to be allowed if no public transportation is available.137 For a child living away from
home, the costs of travel to and from home may be considered.138 Often, however, costs of
travel are disregarded, as it is expected that the custodial parent or adult child will cover these.
In high conflict contested cases it may be desirable for the court to establish a monthly amount of
support based on evidence of expected future costs. It is also possible for the court to identify the
type of expenses that will be covered, and stipulate the portion that will be paid, requiring
documentary proof each year of the expenses incurred, perhaps up to a specified maximum;
139
this has the advantage of allowing for the inflationary adjustments that inevitably occur with
post-secondary costs.
Apportioning Post-Secondary Expenses Between the Parents
If the Guidelines “approach” is used, s. 7 allows for the “means” of both parents are to be
considered and reasonable post-secondary expenses, minus the child’s contribution, should be
apportioned between the two parents. If the Guidelines “approach” is not used because the child
is living away from home and attending a post-secondary institution, the court may require the
payor to pay all reasonable post-secondary expenses, minus what the child is expected to
contribute through financial assistance and income.
If the Guidelines approach is being used to determine child support, then proportionate
contribution to post-secondary costs (less the child’s contribution) in accordance with means
from both parents would seem to be mandatory under s. 7(1)(e).140 Thus, if in accordance with
s.3(2)(a) the Table amount is being paid and the two parents have similar incomes, as was the
136
See e.g Lewi v Lewi, 2006 CarswellOnt 2892, 28 R.F.L. (6th) 250 (Ont.C.A.); and see also Mickle v. Mickle,
[2008] O.J. 169 (C.A.).
137
Such expenses were allowed in W.P.N. v B.J.N., [2002] B.C.J. 2634 (S.C.) and Kavangh v Kavanagh, [1999]
N.J. 358 (S.C.).
138
See e.g. Myers v Myers, 2000 CarswelNS 347 (S.C.) (2-3 “trips home” a year included); in Van Keken v Van
Keken, [2008] B.C.J. 439 (S.C.) Barrow J. allowed travel costs to and from home by public transit, but disallowed
car costs for such travel.
139
Colford v Colford, 2005 CarswellOnt 1527, [2005] O.J.1537 (Ont. Sup. Ct.)
140
See e.g Bertram v Murdock, 2006 CarswellOnt 1394(Ct J.)
47
case in Haley v. Haley, the court should require both parents to contribute equally to the postsecondary expenses.141
However, if support is not being set following the Guidelines approach of s.3(2)(a), but rather
s.3(2)(b) is being used, there is not a requirement that the parent who is providing a “home base”
contribute directly to support, and not infrequently the means of that parent are disregarded and
the payor is required to pay all of the post-secondary expenses, less the contribution of the adult
child. It may be appropriate to not directly take account of the income of the parent providing
the home base if that parent has a significantly lower income or other children living at home,
and some account should be taken of the costs of providing a “home base” for the student. On
the other hand, if the income of the non-payor parent is significant relative to that of the payor, it
should also be taken into account under s.3(2)(b).
High Income Payors: s. 4 of the Guidelines
The usual Guidelines “approach” may also be considered inappropriate in situations where there
are very high incomes. In the recent Ontario case of Turk v. Turk the payor father had an
attributed annual income of $1,000,000 and two children, aged 19 and 22 years. The children
were both attending university, one living with the mother all year and the other living away
while at school, but returning home most weekends and at vacations. Backhouse J observed: 142
The family's lifestyle and pattern of expenditure are relevant and important
considerations in determining appropriateness under Section 4. They will be relevant
both in determining whether the table amount is inappropriate and, if so, what
amount is appropriate having regard to the children's condition and needs... A child's
needs and the payor's income and ability to pay are the only factors relevant to an
analysis under Section 4 of the Guidelines.
Backhouse J. ordered that the father should pay all of the tuition, books and residence expenses
for the two children, fixed at $60,000 per year, plus the Guideline Table amount for the child
living at home ($7,544/mo), and 3/12 the difference between one child and two for the
approximately three months a year that the other child lived with his mother ($892.50/mo.). The
141
142
Haley v. Haley, 2008 CarswellOnt 369, [2008] O.J. 293 (Ont. Sup. Ct.J.) .
Turk v. Turk, 2008 CarswellOnt 512, [2008] O.J. 397 (Ont.S.C.J.), at para. 47-48.
48
judge concluded that in light of the payor’s wealth and the lifestyle, the children and mother
should not be expected to contribute to the cost of university: 143
When a payor's income is high, the court has taken a careful look at the lifestyle the
parties lived while together or what lifestyle the payor now lives in comparison to the
payee who has custody of the child or children. The burden is on the payor to
establish that the table amount is "inappropriate" …. The respondent [father] has at
all times been willing to fund 100% of the children's university expenses without
expecting the children to contribute from their assets or part-time employment. He
now seeks to have the children's assets and income taken into account to reduce the
amount of child support he is obliged to pay to the applicant. This is not a situation
where the children's university expenses are a burden to the respondent....
If it can be shown that the intention of the parents, both while they were co-habiting and after
separation, was that the children would be provided for then it is likely that the Guidelines
approach will be considered inappropriate.
Non-monetary Terms of the Order
Adult child support for post-secondary program attendance is intended to be for a particular
purpose and limited to the time that it takes for the child to become self-supporting. As a result,
when the court makes an order for support under these circumstances, it may also impose
conditions on the child in order to monitor how the child is progressing with the help of that
support. The court will often impose termination dates of support, future orders for judicial
review, and reporting requirements on the child.
Orders for termination of support are most common in cases where the child is currently
searching for employment or is nearing the end of an educational program. In Smith v. Smith, the
order for support was limited to 6 months, which Oppal J. considered “ample time” for the child
to find employment.144 In Johnson v. Johnson, Wood J. ordered that “[the payor parent] shall
continue to pay support for [the child] at the amount currently being paid under the divorce
judgment until [the child] has completed one post-secondary educational degree.”145
143
Turk v. Turk, 2008 CarswellOnt 512, [2008] O.J. 397 (Ont.S.C.J.), at para. 49-52.
Smith v. Smith, 1987 CarswellBC 555, 12 R.F.L. (3d) 50 (BC.S.C.).
145
Johnson v. Johnson, 2004 CarswellOnt 3512, 9 R.F.L. (6th) 380 (Ont.S.C.J.),
144
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The objective in providing support is to see that the child reaches a goal that will help them to
find employment in a particular field of their choice. Once their education or training program
ends or that job has been attained, the payor parent should no longer be responsible for assisting
that child with their achievement of self-sufficiency.
Therefore the court may include a
termination date related to the completion of the program.
The court can also order review of the support order at some future date. This is, for example,
likely to be done in cases where the court has required an estranged child to re-establish a
“civilized relationship” with the payor parent. A review order may also be made when a child is
in the earlier years of an educational program where the seriousness of the child’s attention to
their program is questionable or there is a question about how much the child should be
contributing to their support.
The courts often require regular reporting by the child of their grade records, of their income, and
proof of their attendance in that particular educational program.146
Separation Agreements: Termination Provisions Not Binding
While provisions for child support in separation agreement may stipulate a termination date for
child support, such stipulations are clearly not binding, as the issue of termination must be
resolved when the child is an adult, and in the context of the particular circumstances at the time
of the application to terminate or vary support.
In 1987 Wilson J. stated in the Supreme Court of Canada case of Richardson v. Richardson
observed that:147
As a general proposition it can be stated that the obligation of support lasts until a
child is between 18 and 21 years of age. It can last longer than that if there are
special circumstances such as the presence of physical or mental handicaps in the
child or the child is in full-time attendance at an educational institution. Child
maintenance, like access, is the right of the child... For this reason, a spouse cannot
barter away his or her child's right to support in a settlement agreement. The court is
always free to intervene and determine the appropriate level of support for the child
146
147
Haley v. Haley, 2008 CarswellOnt 369.
Richardson v. Richardson, [1987] 1 S.C.R. 857 at para. 14.
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The case law from the late 1980’s and early 1990’s follows this reasoning. In the 1988 case
Thomson v. Thomson, Cameron J.A. stated that “a final settlement agreement entered into
between a husband and wife is not binding on the children. A child has the right, despite the
agreement, to have his parents contribute to his support according to their relative abilities.”148
Concurring with Cameron J.A., Vancise J.A. also stated that “a court is not bound by the child
support provisions of a settlement agreement and may award increased support if the agreement
does not adequately meet the children's needs.”149
Litigation on the effects of provisions in a separation agreements on child support orders was
quite common until the mid 1990’s. In the 1994 Supreme Court ruling in Willick v. Willick,
Sopinka J., stated that:150
Under s. 15, in granting support orders, courts are to consider, among other things,
the needs of the children, the relative ability of the spouses to pay, and the joint
obligation of parents toward their children. This suggests a child-centred approach to
rendering support orders, with a recognition that, because of relative income
differences, spouses may be in unequal positions with respect to their capacity to
pay.
Sopinka J. states that the means of the child and the parent are the central issues to be considered
when making a child support order. His omission of considering the separation agreement
implies that the agreement does not hold the same level of weight as other considerations. In the
2003 case of Jay v. Jay, Webber J.A. referred to Sopinka J.’s judgment with approval. Webber
J.A. stated:151
An agreement between the parties is only one factor to be taken into consideration
when deciding upon the best interests of the child. While such an agreement provides
strong evidence of what the parties accepted at the time as meeting the best interests
of the child, it does not relieve the court of its responsibility under s. 16 of the
Divorce Act to make an independent assessment of the best interests of the child.
148
Thomson v. Thomson, 1988 CarswellSask 50, 14 R.F.L. (3d) 347 (Sask.C.A.).
Ibid.
150
Willick v. Willick, 1994 CarswellSask 48, 6 R.F.L. (4th) 161 (S.C.C.).
151
Jay v. Jay, 2003 CarswellPEI 71, [2003] 41 R.F.L. (5th) 306 (PEI.C.A.). See also Mickle v. Mickle, [2008] O.J.
169 (C.A.).
149
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After the Child Support Guidelines came into effect in 1997, the amount of reported litigation on
this issue declined significantly, and it is now accepted that the courts are not bound by
provisions of separation agreements that purport to limit the amount or duration of child support.
As observed by Matheson J. in the 2007 Ontario decision of Zlatar v. Hartwick:152
I do not believe that parents may opt out of the responsibility for post-secondary
education, if they have the ability.
Charter Challenges – Going Nowhere.
Unfortunately, when parents are separated, issues arise that can conflict with the family’s goal of
successfully raising and supporting their offspring. Non-custodial parents can become estranged
from children. As noted by McIntyre J. :153
It is clear that adult children of divorced or divorcing parents may not receive the
same financial assistance as they might have if their parents were still together. It is
also clear that the obligation which may be imposed upon a divorced or divorcing
parent is crafted so as to limit the obligation...
Federal and provincial legislation requires support for adult children of separated parents so that
they will not suffer unduly from their parents separation and in particular so that they can pursue
post-secondary education.
Thus, the law in Canada imposes a legal obligation on separated
parents while parents in intact families generally only have a moral obligation to provide this
support. The constitutionality of this legal obligation has been challenged in the courts on several
occasions, as it does not exist in many other countries. Non-custodial parents have argued that
the imposition of this obligation on them discriminates against them and violates s. 15 of the
Charter, as divorced parents have legal obligations that may not be not imposed on parents who
have not separated. While the courts have acknowledged differences between the legal treatment
of divorced parents and married parents, they have found that the needs of adult children justify
this difference in treatment. In one case in which the court rejected such a challenge, Michie v.
Michie, McIntyre J. states154:
Given the adverse financial impact on the children of divorced [parents] ... I have no
difficulty in finding that the effect of the discrimination is proportionate to the
152
[2007] O.J. 2380 (Ont. Sup. Ct.)at para. 41
Michie v. Michie, 1997 CarswellSask 608, 48 C.R.R. (2d) 333 (Sask.Q.B.).
154
Ibid. at para. 30.
153
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benefit. Adult children of parents who are together and who are perusing postsecondary education and who remain financially dependent upon their parents
continue to enjoy the benefit of the financial means of both spouses. The provisions
of the Divorce Act in question simply attempt to achieve a similar benefit for the
children of divorced [parents].
The constitutionality of the Divorce Act imposition of an obligation to support adult children was
also recently upheld by the Manitoba Court of Appeal.in Rebenchuk v. Rebenchuk.155 In rejecting
a Charter challenge in Souliere v. Leclair, Bolan J. observed that it is not the need of the child
alone that is considered but also the ability of the parent to contribute: 156
The requirement to pay post-secondary education costs is not automatic. It becomes a
requirement when the payor has the ability to pay this extra expense. It cannot be
said that the requirement to pay violates the dignity of the Respondent if he does in
fact have the ability to pay.
In the 2005 Saskatchewan case of Beutler v. Maki, Smith J. also upheld the constitutional
validity of the imposition of an obligation to support adult children, though acknowledging
that:157
The Divorce Act, the Guidelines and their judicial interpretation, have created an
anomaly. An intact family has the ability to require of their child that he or she pay
100% of post-secondary education... The situation for a broken family is radically
different. The payor, regardless of his or her consent, may be obligated to contribute
for post-secondary education.
Smith J. continued his analysis, observing that the cost of tuition is increasing, and that the courts
should consider that it may no longer be reasonable to require a divorced parent to support the
adult child without assistance from that child. This case illustrates that judges are aware of the
financial challenges faced by payor parents.
Conclusion
Support for adult child support is an area where courts have considerable discretion in
determining entitlement, duration and quantum. Unlike with many other issues of child support,
the outcome of individual cases is not always easy to predict, and will be influenced by the
particular facts as well as the views of the judge about the nature of “childhood” and when it
155
Rebenchuk v. Rebenchuk, 2007 CarswellMan 59, 35 R.F.L. (6th) 239 (Man.C.A.).
(1998), 38 R.F.L. (4th) 68 (Ont. Gen. Div.)
157
Beutler v. Maki , 2005 CarswellSask 604, 20 R.F.L. (6th) 25 (Sask. Q.B.) at para. 35 – 37.
156
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should end.
The uncertainly of outcomes makes settlement of these cases more difficult.
Further, the growing expectations for more education and training for young adults will make
this an increasingly important area for lawyers and judges. However, this is not an area of
unbridled judicial discretion, and it is to be hoped the type of analysis offered in this paper will
help judges to settle cases in a more predictable fashion, and result in more cases being settled by
lawyers.
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