Child Support for Children Over 18 Years of Age
By Jack Pantalone
Except in very limited circumstances, child support is payable by a support payor in accordance with the amounts set out in the applicable Tables of the Child Support Guidelines.
The exceptions to these presumptive amounts are set out in Section 3 (children over 18 years of age), Section 4 (incomes over $150, 000.00), Section 9 (situations of shared custody of children) and Section 10 (undue hardship).
Section 3 (2) of the Guidelines provides, as follows
Unless otherwise provided under these Guidelines, where a child to whom an order for the support of a child relates is the age 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 approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child.
In regards to Section 3 of the Guidelines, the most common scenario giving rise to a deviation from the presumptive amount (i.e., a situation where the court considers that approach to be inappropriate), is the case where a child is attending university or college outside of the city, or within the city that his or her parents reside, but not living at home.
Under the Divorce Act, a “child of the marriage” means a child of two spouses or former spouses, who, at the material time,
(a) is under the age of majority and who has not withdrawn from their charge, or
(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 necessaries of life.
“Other cause” has been defined to include a child continuing to be enrolled in school on a full-time basis.
It is clear, therefore, that under the Divorce Act, a child remains a “child of the marriage” for child support purposes, if the child remains dependent upon his or her parents, by virtue of being enrolled on a full-time basis in school, even if he or she is eighteen years old or older.
As long as a child remains enrolled in school on a full-time basis after his or her eighteenth birthday, the issue in these cases becomes whether the Table amount of support for that child should be reduced and, if so, by what amount.
In the Ontario Court of Appeal case of Park v. Thompson, the court agreed with the rationale for reducing child support during the academic year where the child is not living at home, as set out in another case, as follows:
“Where, however, a child is residing in another residence for the bulk of the year, it seems inappropriate to apply Tables that are not designed with that living arrangement in mind. Furthermore, the Table approach assumes that the recipient parent discharges her obligation by being physically in the same household and providing the family home and other amenities for the child. Where a child is at college, this assumption does not hold true. It therefore seems more appropriate to calculate the actual costs of providing for the needs of the child in his other residence, factoring in a contribution toward the costs of maintaining the family home to return to on weekends and school breaks where appropriate, and apportion that between the spouses on a Paras approach after considering the child’s own ability to contribute.” [Emphasis added]
The Paras formula set out above refers to an approach whereby the parents and the child jointly attempt to calculate the child’s expenses while away from home (prepare a budget for the child), in order to determine the parents’ respective contributions towards the child’s expenses while living on his or her own.
During the school year, courts will commonly order that the parents pay their proportionate share of their children’s education and living expenses, which are the child’s special or extraordinary expenses (Section 7 expenses, as per the Guidelines). After taking into account the parents’ respective contributions towards these post-secondary expenses, courts will then determine any additional amount that should be payable to the recipient parent, to take into account any further expenses that he or she is incurring in order to maintain a home for the child, costs associated with return visits home, etc. Further, there may be incidental expenses (entertainment money, toiletries, etc.) to which only the recipient parent is contributing. These further expenses being paid by the recipient parent may justify an ongoing child support payment by the payor parent, to assist in the payment of these other incidental expenses.
There is obviously no hard and fast rule in determining the amount of ongoing support that should be payable in these situations. The bottom line is that each case is unique, and will be decided on its own merits. A parent who has to pay 80% of the post-secondary expenses associated with the child who is attending theUniversityofBritish Columbia, for example, may have few funds left over to pay additional ongoing child support to the recipient parent. Conversely, a parent who is paying 50% of the child’s post-secondary expenses to go to college in Kemptville (where the child may be returning home to Ottawa more frequently), may have to pay an amount closer to the full Table amount, to take into account the fact that the recipient parent is incurring greater ongoing expenses related to that child.
In regards to the summer months, courts routinely resort to the presumptive Table amount of support during the months that the child returns home from school, and treats the child’s summer earnings as part of the child’s contribution towards his or her education expenses in calculating the sharable post-secondary education expenses.
Child support continues to be payable for a child over the age of eighteen years, provided that the child remains enrolled in and attends school on a full-time basis. If the child continues to reside at home while attending his or her post-secondary program, full Table support will most assuredly be ordered, in light of the fact that the ongoing expenses related to that child have not really changed in any material way. If, however, the child leaves home to attend school, the general rule is that it is inappropriate to order the presumptive amount of Table support during the months while the child is away for school.
Jack Pantalone is a family law lawyer based in Ottawa Ontario. He has been practicing law for over 22 years and has focused on family law since 1998, which includes divorce, custody and access, child and spousal support, property disputes, domestic contracts (such as separation agreements), and variation applications.