Child support for adult children – The case for post-secondary education

BY VALERIE DYE

Neither the Federal Divorce Act nor the provincial Family Law Act restricts the payment of child support to only minor children. While the languages used in each Act is different they both suggest that a payor may be required to pay support for children who are adults.

With regard to the Divorce Act, which applies to a child born to spouses who are married or who have gone through a divorce, the eligibility for support is based upon the inability of the adult child to withdraw from the parent’s charge. While such inability may stem from the child’s disability, or other illness, most instances of a claim for support arise from the fact that the child is attending post-secondary education. While the issue of post-secondary education is not specifically mentioned in the Divorce Act it is mentioned in the Family Law Act, which states that:

(1) ‘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(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.

As stated in the 2014 case of Meyer v Content, the child must be unable to withdraw from parental control by virtue of his financial or emotional dependence on one or both parents. In making its assessment the court will have to determine whether the child is truly dependent on the parents and would not be able to pursue his education without the assistance of one or both parents. The fact that the child is still attending school may not be enough to justify continued support beyond the age of majority.

In the 2012 Ontario Superior case of Menegaldo v Menegaldo, the court set out 12 factors to help determine whether or not an adult child should receive support for post-secondary education. Those factors are summarised as follows:

• Enrollment in full-time education,(b) ability to find part-time work, (c)ability to obtain student loans,(c) whether the child has a reasonable and beneficial education and career plan or is simply attending school because he/she has nothing else to do,(d) the child’s academic performance,(e) the age, qualification and experience of the child, (f) what plans were made by the parents for the education of the child, (g)the means of the parents, (h) the willingness of the child to remain accountable to the parents with regard to their education.

Where a child refuses to maintain a relationship with a parent this may be an indication that the child is able to withdraw from parental charge and may not be in need of financial support from the parents.

All of these factors will not necessarily apply in every case. These are simply factors to be considered by the court. For instance, while the court may not compel a child to obtain student loans, it has been decided in some cases that a child should make some contribution toward a portion of their own post-secondary education.  Further, a parent who continues to pay child support for a child enrolled in post-secondary education is entitled to obtain details of the academic programme and of the child’s performance on the programme.