VANCOUVER CALGARY UNIVERSITY ADULT CHILD SUPPORT cases involve an assessment of the additional costs of sending a child to university after parents separate or divorce. What is the child’s obligation to contribute? What happens when the child lives away from home? Can a child pick the most expensive university option and get child support for these increased costs?
MacLean Law’s medium to high net worth VANCOUVER CALGARY UNIVERSITY ADULT CHILD SUPPORT lawyers deal with this cases on a daily basis. Our VANCOUVER CALGARY UNIVERSITY ADULT CHILD SUPPORT have 7 offices across Western Canada in Vancouver, Calgary, Surrey, Kelowna, Richmond, Fort St John and Winnipeg Manitoba. Call us toll free 1-877-602-9900.
VANCOUVER CALGARY UNIVERSITY ADULT CHILD SUPPORT
“The next 18 years” is a phrase often made, even in jest, in reference to the daunting financial obligations faced by new parents with respect to their family additions. The BC Child Support Lawyers at MacLean Law will show you why the phrase really is inapt, whereas a child’s “dependency” under both the Divorce Act and the BC Family Law Act support obligations may not end until far beyond when the child turns 18. In reality, there is no automatic termination date.
VANCOUVER CALGARY UNIVERSITY ADULT CHILD SUPPORT
Tal Wolf, our senior downtown associate explains the latest case on how adult child support works in post secondary education cases.
In an opinion issued by the British Columbia Supreme Court just last week in Zandbergen v. Craig, 2017 BCSC 487, the parties were divorced for 8 years, when they also consented to an order for child and spousal support. The former husband sought a determination of prospective child support for the parties’ daughter, who was 20 and attending university in the United States.
This VANCOUVER CALGARY UNIVERSITY ADULT CHILD SUPPORT dispute raised all of the issues you see in an adult post secondary education child support case. Here is what the judge decided in this VANCOUVER CALGARY UNIVERSITY ADULT CHILD SUPPORT application:
45 Because the daughter is living away from home while attending university for most of the year, I must consider whether pure application of the table amount is appropriate for ongoing child support (for 2017 and onwards).
46 The law on support for adult children attending university is summarized in Catallo v. Catallo, 2015 BCSC 1276 at paras. 38 and 39:
[38] The jurisprudence has dealt with the issue in the following manner. In Neufeld v. Neufeld, 2005 BCCA 7, the court said that for a child over the age of majority attending a post-secondary institution and living away from home, support should generally be determined under s. 3(2)(b) of the Guidelines. In general, it is inappropriate, for example, to award the table amount of support and then add a proportionate share of post-secondary expenses because this approach would not take into account a proper contribution to be made by the child through student loans and part-time work or the reduced financial burden on the custodial parent in maintaining the household.
[39] In L.H.M.K. v. B.P.K., 2012 BCSC 435, Mr. Justice Brown accepted the proposition that where s. 3(2)(b) of the Guidelines is applied to an adult child attending post-secondary schooling who is living away from home, courts generally suspend child support for that child when the child is away from home. In turn, courts order each party to pay their proportionate share of the child’s education expenses. Children have an obligation to make a reasonable contribution to their education as well: Wesemann v. Wesemann, [1999] B.C.J. No 1387 (S.C.) at para. 39.
47 The respondent says the costs of the daughter’s attendance in the U.S., including tuition, living expenses and travel, is about $60,000 a year. The claimant says he was not consulted about the decision to attend an American university and argues that similar training is available at much less cost in British Columbia or elsewhere in Canada. However, I find that he has failed to demonstrate that the daughter’s choice is unreasonable having regard to the specific educational programs offered and her career goals. The cost, while high, is also not unreasonable or unusual for a family of this income level. At the same time, there is no evidence about the daughter’s ability or efforts to assist in the financing of her education through student loans, scholarships or part-time employment.
VANCOUVER CALGARY UNIVERSITY ADULT CHILD SUPPORT
The court found different rules apply to adult children but that the Child Support tables still help calculate the right amount.
48 Although the situation is now one that should be assessed under s. 3(2)(b), the table amounts can still serve as a helpful reference point. Although the claimant had a much higher than normal income in 2016, there is no way of knowing if that will be repeated. For the purpose of ongoing support it is, in my view, appropriate to consider an average income for the last three years. That average is a little less than $430,000.
49 If that average income of $430,000 was to be applied to the support tables, the claimant would pay $3,395 a month or $40,740 a year. For comparison purposes, that is approximately two thirds of the daughter’s annual education costs.
50 The respondent has no income other than what she receives from the claimant, so it is simply unrealistic to talk in terms of parents sharing educational costs in proportion to their incomes. However, as noted above, adult children pursuing higher education have a responsibility to contribute to the cost by pursuing available financial aid or part-time employment: Catallo at para. 39. This is particularly so when the child chooses to study outside the country, which may be a more advantageous educational choice but is also a costly one.
51 Considering all of the circumstances, I find that effective January 1, 2017 and for the nine months a year that the daughter is in university, the respondent must pay child support of $5,000 a month. That equals $45,000 a year or roughly 75% of the estimated annual education and associated living costs. Coincidentally, the monthly amount is the same as the claimant paid when he was paying support for both children.
52 During the three months a year when the daughter returns to Vancouver and lives with the respondent, the monthly child support payments will be reduced to the table amount of $3,395.
VANCOUVER CALGARY UNIVERSITY ADULT CHILD SUPPORT
What is the cut off date for VANCOUVER CALGARY UNIVERSITY ADULT CHILD SUPPORT?
“Child of the Marriage,” as defined by the Divorce Act, includes children over 16 who are still pursuing their education, including post-secondary education. The Child Support Guidelines do not provide any termination of child support when a child reaches a certain age rather child support is payable for a child that is over 18 years old as long as that child is in full time school attendance.
VANCOUVER CALGARY UNIVERSITY ADULT CHILD SUPPORT
So in a disputed VANCOUVER CALGARY UNIVERSITY ADULT CHILD SUPPORT case what must the person claiming child support for a child over 19 in BC and 18 in Calgary prove?
The question then becomes, what exactly constitutes a full-time program of education? Is attendance at school required? Is 5 course required or is a 60 percent case load sufficient. What if the child has learning challenges that require them to work less?
A child can be found to be enrolled in a full-time program of education while taking less than a full course load, so long as his or her participation is meaningful and consistent with the program’s purposes and objectives. It is not uncommon for university students to require an additional school term to complete the necessary credits to obtain a degree. This does not necessarily disentitle them to support under the Family Law Act. They are still in the process of completing a full-time educational program.
But the entitlement to support is not automatic, and whether or not attendance in a post-secondary institution will be sufficient cause for a finding that the child is still a “child of the marriage” requires examination of all of the circumstances. These may include, for example:
(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 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.
Farden v. Farden, 1993 CarswellBC 619.
Most courts now find the guideline amount inappropriate when a child attends university out-of-town and only returns home during the summer and school breaks. Although each case must be examined on its own facts, some .courts will order the full table amount in the months the child is living at home with a lesser amount when the child is away at school and some may do the opposite taking into account the child’s work income over the summer months as part of the child’s contribution. Providing the court with evidence of the costs required to maintain a home for a child who is away at university is important in such cases.
Note also that, despite the terms of a separation agreement that support terminates when a child completes his or her first undergraduate degree or becomes 23 years of age, the court may determine it is not bound by this term. Child support is the right of the child and cannot be bargained away by a recipient parent to the detriment of the child.
The area can be tricky so pick up the phone and call one of our top rated* VANCOUVER CALGARY UNIVERSITY ADULT CHILD SUPPORT lawyers toll free at 1-877-602-9900.
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