Post Secondary Education and Entitlement to Child Support

Post Secondary Education and Entitlement to Child Support

Whether a parent is responsible for paying for post-secondary education or providing for their child financially while they are attending post-secondary school can be a contentious issue between spouses after separation. In British Columbia, children are entitled to child support pursuant to the Federal Child Support Guidelines until the age of majority which is 19 in British Columbia. Once a child reaches the age of majority, they are not presumed to be entitled to child support. However, they could still be entitled to support if they are found to be children of the marriage entitled to support. Pursuant to the Divorce Act:

Child of the marriage means a child of two spouses or former spouses who, at the material time,

1. Is under the age of majority and who has not withdrawn from their charge, or
2. 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 necessaries of life.

Whether a child attending post secondary school is entitled to support varies and depends on the specific facts of each case. If parents are not able to agree on the matter, the parent seeking child support has the burden of establishing that the child is entitled to support. When determining if a child over the age of majority is entitled the support while attending post-secondary school the court considers the following factors:

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;
4. The ability of the child to contribute to his or her 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 some 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 who support is sought.

(Farden v. Farden, 1993 Canlii 2570 (BCSC))

Child support includes the basic monthly child support and special and extraordinary expenses. Post secondary education expenses such as tuition and books are considered special and extraordinary expenses. Special and extraordinary expenses are generally shared proportionate to the parents’ income. The basic monthly child support is set per the Federal Child Support Guidelines, however, in the case of children over the age of majority the court can depart from the Guidelines pursuant to section 3(2) of the Guidelines. The court can examine the condition, means, needs and other circumstance of the child in determining what appropriate amount of child support should be paid. This includes examining whether the child is able to contribute to his or her own expenses, scholarships or bursaries, RESPs or other relevant information to determine the appropriate monthly child support amount.

While there is no arbitrary cut off point based on whether a child is on a first or second post secondary degree, as child’s age increases and as the level of education increases it becomes more difficult to establish that a child is still a child of the marriage entitled to support (W.P.N. v. B.J.N., 2005 BCAA 1 at paragraph 29-30). However, court still looks to the Farden factors and assess the facts of each case to determine if the child is still a child of the marriage entitled to support.

For more information or assistance please contact a family lawyer at Cote & Evans Trial Lawyers.