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How Is Spousal Support Decided in Canada?

How Does Adult Child Support Work? Our BC and Alberta family lawyers get asked this question frequently. Children who are committed to pursuing post-secondary education are normally entitled to be supported by their parents so they can obtain the skills and experience to be successful adults. There is no absolute cut-off age for child support for children of separated or divorced parents. The upper limit for post-secondary education can include more than just an undergraduate degree.

Two different approaches on adult child support

In today’s blog Lorne MacLean, QC and Fraser MacLean explain two different approaches depending on where an adult child resides when they go to university.

  1. First, in BC the child becomes an adult once they have passed their 19th birthday while in Alberta the age of majority is 18.
  2. Second, budgets become important for post-secondary education cases especially when the child resides away from home for all or part of the year.
  3. Third, the ability of the child to contribute through a part-time job, scholarships, bursaries,  and student loans will also be assessed.
  4. Fourth, the necessity and reasonableness of an out of country education and its often substantially higher cost will also need to be considered against the cost of a local school. Our firm handles numerous high net income child support cases where the costs of a US medical or law school education can be over $100,000 a year.
  5. Finally, the issue of whether a child is supported for the first degree only or whether they obtain child support for a postgraduate degree is more common than ever in today’s competitive society. Academic success and a proven connection the program will likely lead to success in the child’s career plan towards an employment goal will be scrutinized.

Half-hearted efforts, constant changes to the educational plan without improvement in marks and any prolonged substandard scholastic performance will likely lead to termination of adult child support.

Recent cases of adult child support 

In the recent case of Mohamed v. Martone, the two approaches to calculating proper adult child support were compared and rules on when to apply one test or the other reiterated:

[30]         Claimant’s counsel referred to Wesemann v. Wesemann, [1999] B.C.J. No. 1387 at para. 6, which describes a four-step procedure to determine child support for a child over the age of majority. Counsel acknowledged that the Wesemann test has been largely overtaken by subsequent cases so that the second step is no longer necessary and that there need not be a party challenging the application of s. 3(2)(a) of the Guidelines in order for the court to apply s. 3(2)(b).

[31]         The proper approach to determining whether s. 3(2)(a) or s. 3(2)(b) of the Guidelines applies is set out in McClement v. McClement, 2017 BCCA 416 at para. 12, as follows:

[12]      In sum, the choice between the two sections is discretionary and determined by the particular circumstances of each case and there is no specific requirement formally to challenge relying on s. 3(2)(a) before a judge can consider whether it is inappropriate to apply that subsection rather than s. 3(2)(b) and or vice versa. The view taken by this Court is that the burden of proof rests with each party in the ordinary manner to persuade the court which of the two sections is the appropriate one to apply in the particular circumstances before the court. There are of course factors that tend to support the appropriateness of relying on one section rather than another and which guide the exercise of a judge’s discretion. For example, the more closely the circumstances of the adult child resemble those of a minor child living at home, the less likely it is that the approach found in s. 3(2)(a) will be determined to be inappropriate. Each case will depend on its facts.

[32]         Having regard to the particular facts of the case at bar, I conclude that s. 3(2)(b) of the Guidelines applies (in conjunction with s. 4). Generally, s. 3(2)(b) applies in the case of “an adult child attending a post-secondary institution and living away from home”: M.(P.R.) v. M.(B.J.), 2012 BCSC 1795 at para. 120 [P.R.M.], aff’d 2013 BCCA 327; W.P.N. v. B.J.N., 2005 BCCA 7 at para. 42 [W.P.N.]; see also De Beck v. De Beck, 2012 BCCA 465 at paras. 55 and 56. Those are the circumstances here. E.M.’s circumstances do not resemble those of a minor child living at home. To apply s. 3(2)(a) of the Guidelines would thus be “inappropriate” in the circumstances.

[33]         Accordingly, child support is to be determined according 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”. This includes consideration of the child’s potential contribution, “which is an important factor in considering the amount of support a student requires”: W.P.N. at para. 42.

If you have questions about which test applies and other questions on How Does Adult Child Support Work? you need to call any our top rated family law lawyers toll free today 1-877-602-9900. Read more here.