Canada: Child Support Obligations & Post-Secondary Schooling Series

Part One: Departing from the Guidelines

The completion of high school does not necessarily translate into a termination of child support obligations. When adult children make the decision to attend post-secondary schooling, the payor spouse's child support obligation may continue, recommence or cease to exist altogether. While the application of family law principles is very fact driven, there are common trends in the jurisprudence that can allow for some predictability and for the identification of potential exceptions.

Pursuant to the Divorce Act, RSC 1985, c 3, a child of the marriage, in other words a child entitled to support, is either a child younger than 18 years old who has not withdrawn from the charge of their parents, or a child who is 18 years old or older and is unable to withdraw from the charge of their parents by reason of illness, disability or other cause. The main difference is that the adult child must have a reason for being unable to withdraw from the charge of their parents.

In 2011, the Saskatchewan Court of Appeal expanded upon the relevant indicia to determine when an adult child would be "unable to withdraw" from the charge of their parents by reason of pursuing a post-secondary education, which, in short, "may be taken in this context to mean unable without the direct or indirect financial assistance of the parents to pursue a reasonable course of post-secondary education to the end of bettering the future prospects of the child." ¹ Consideration of this issue will require the Court to examine the overall reasonableness of the proposed post-secondary education in light of the relevant indicia, which include such things as: the child's aptitude, qualifications and career path; the means and needs of the parents; the means and needs of the  child; other financial avenues available to the child; the child's relationship with the parents (in so far as whether there was a unilateral termination of the relationship by the child and the child's willingness to communicate their educational progress), and the plans or expectations parents may have had in regard to that child's post-secondary education.²

Once a determination is made as to entitlement to child support by considering these indicia, the Court will then look at whether it is appropriate to depart from the amount provided for in the Federal Child Support Guidelines (the "Guidelines"). At s.3(2)(a) there is a presumption that child support is payable in accordance with the Guidelines. This means that support will be calculated under s.3(1) as if the child were under the age of 18. If the Court deems the amount payable under the Guidelines to be inappropriate, then the Court turns to s.3(2)(b). Under s. 3(2)(b), the Court can order a different amount by 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".  In defining "inappropriate" the Court considers whether the amount payable pursuant to the Guidelines falls short or exceeds its purpose. ³ The purpose of child support provisions is to protect the child against the disadvantages that may result from the breakdown of their parents' relationship.⁴ If the Court determines the Guidelines amount inappropriate, then under s.3(2)(b) the Court can make an order for the child's actual needs based on the parents' actual means rather than the child's presumed needs and the parents' presumed means.

The operation of the considerations articulated by our Court of Appeal in Geran means that when the adult child is earning a substantial income, generally the presumption for Guideline support will be displaced and the table amounts deemed inappropriate. ⁵ There is no set amount of money that constitutes a "substantial income", but the caselaw suggests that anything over $10,000 can render the Guidelines amount inappropriate.⁶; The basis for this, as explained in Geran v Geran, is that the Guidelines assume that a child under the age of 18 will have no independent income.  Earning a substantial income displaces this basic assumption.⁷

The Saskatchewan Court of Appeal recognized in Bradley v. Zaba ⁸ and later affirmed in Geran v Geran ⁹, Hagen v Rankin ¹⁰ and B. (D.M.) v. B. (D.B.) ¹¹, that children have an obligation to contribute to their education to the best of their abilities, either through employment or financial programs, such as student loans. However, the Courts have also recognized that the income earned by children need not be used exclusively to finance their education; it can also be used for personal enjoyment. ¹² On review of the caselaw, the Saskatchewan Court of Appeal in Boyachek found a broad discretion in determining the obligations of the child to contribute via part-time employment, scholarship or student loans, but noted that the trend is to impose one-third to one-half of the financial burden on the adult child. The decision to impose an obligation on the child is not fixed and depends on the incomes and circumstances of the parties. ¹³ One can easily imagine the circumstance where a parent's annual income is exceptional, and the Court may decline to order the child to contribute at all.

The application of the above principles is highly fact-driven, and each case is resolved with consideration of a multiplicity of factors. Individuals facing similar issues should contact a lawyer for advice on the application of the jurisprudence to the variables of their own situation.

This article is part of a series on post-secondary support obligations. Part Two of the series explores the support obligation when a child takes an extended break from schooling and achieves some measure of independence, when a child may be considered too old to return to school and expect support obligations to continue or recommence, and whether parents' obligations may be limited to a finite amount of education.

Footnote

1 Geran v Geran, 2011 SKCA 55 at para 15.

2 Geran v Geran, 2011 SKCA 55 at para 21; Previously set out in Bradley v Zaba (1996) 1996 CanLII 4930 (SKCA) at para 10.

3 Geran v Geran, at para 56; Dergousoff v. Dergousoff  (1999),  1999 CanLII 12250 (SKCA).

4 Geran v Geran, at para 18.

5 Hagen v Rankin, ___ l; Geran v Geran, ibid at para 63.

6 In Peterson v Peterson, the daughters earned roughly $10,000 and between $15,000 and $19,000 and both were also eligible for student loans.  In Hagen v Rankin, the son was her name proximally $11,000 per year and also received $2000 per year from an educational fund.  In Geran v Geran, the daughter earned approximately $12,000 per year. In all three of these cases, the courts were satisfied that guideline amounts were inappropriate.  The Court ordered child support in accordance with section 3(2)(b) of the Guidelines in all three of these cases.

7 Geran v Geran, at para 65.

8 Zaba v Bradley, 61 ACWS (3d) 956(WL)(SKQB) at para 9 [Zaba v Bradley [viva voce]].

9 Geran v Geran, supra note _ at para 23.

10 Hagen v Rankin, 2002 SKCA 13 at para 9, 111 ACWS (3d) 549.

11 B. (D.M.) v B. (D.B.), 2015 SKQB 65 at para 332, 255 ACWS (3d) 436.

12 Albert v Albert, supra note 19 at para 66.

13 Boyachek v Fleming, 2011 SKCA 11 at para 7, 198 ACWS (3d) 441.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.