Adult Post Secondary Child Support lawyers know two formulas can be applied to child support over the age of 19 in BC and age of 18 in Alberta. Our top-rated* Adult Post Secondary Child Support lawyers explain that the adult child or children are living with one of their parents and attending university, then child support is determined under the normal presumptive s. 3(2)(a), i.e. table amount plus s. 7 expenses. In these Adult Post Secondary Child Support cases, other types of the with child support formula will apply, e.g. the basic with child support formula, or the split or shared custody formula, or the custodial payor formula (many of the reported cases involving adult children fall into this last category). But a different approach usually when a child attends school and lives away from home.
Many unrepresented clients and even some nonspecialist lawyers can make errors that cost thousands of dollars using the wrong rule and failing to address the impact on the monthly spousal support payments. Common errors include missing the related reduction in spousal support as a result of these high expenses and what happens during the summer months. Another common disputed Adult Post Secondary Child Support issue is whether adult child support is payable for postgraduate degrees. Call our BC and Alberta child support lawyers to ensure your child gets the proper support. Meet with Lorne MacLean, QC or Fraser MacLean to develop a winning child support strategy that ensures there are no errors on spousal support.
Adult Post Secondary Child Support 3 (2)(b) 1 877 602 9900
A different rule applies to children who live away from home to obtain a post-secondary education. The most common circumstances when s. 3(2)(b) will apply, occur for adult children happen where the “table-amount-plus- s. 7-expenses” approach is not appropriate:
- a child lives away from home for college, university or other post-secondary education ( differences in cost for a local university versus da U.S. or a foreign university may be an issue too!)
- a child has other sources of income or resources to cover all or most of their higher education, e.g. a good job, grandparents, scholarships, RESPs, etc.
- a child pursues advanced degrees and is expected to contribute a larger proportion of their education costs
- an adult child is disabled and receives his or her own social assistance or other independent disability funding
In these cases s. 3(2)(b), will be applied and the adult child support is usually determined by creating and assessing a monthly budget for the child, assessing the child’s contribution first, and whether they can work at all during the school year and then dividing the balance between the parents based upon their respective incomes. Further, a separate 3 2 (a) normal monthly support payment can be paid for the 4 school holiday summer months.
Adult Post Secondary Child Support 3 (2) (b) 1 877 602 9900 The Rules
Adult Post Secondary Child Support The Simple Rules:
- Child support is governed by section 17(6.1) of the Divorce Act, which indicates that a child support order shall be made in following the applicable Child Support Guidelines.
- The presumptive rule that applies to children under the age of majority and those in post-secondary school living at home is Section 3(2) of the Federal Child Support Guidelines which stipulates that for a child over the age of majority, the amount of child support is the amount under the guidelines, i.e. tables or in cases of a child living away from home or whom has substantial income or subsidies “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 spouse to contribute to the support of the child.”
Corby v. Corby, 2015 CarswellOnt 8294 [which referred to Park v. Thompson, 2005 CanLII 14132 (ON CA), [2005] O.J. No. 1695 (Ont. C.A.)] the Court stated:
[27] When a child attends a post-secondary educational institution, is over the age of majority and is not living at home during the academic school year, then it is not appropriate to use the approach in s. 3(2)(a) because the table amount is premised on the assumption that the recipient parent is providing for the expense of a child who resides with that parent, and accordingly the means and needs analysis set out in s. 3(2)(b) should be used instead.
[29] During the time that each child was attending college or university, I find that the calculation of child support pursuant to the “standard approach” in s. 3(2)(a) is not appropriate and that the child support should be determined pursuant to s. 3(2)(b). During the summer months, however, the “standard approach” to child support, while the child was residing with the respondent, is appropriate, and the applicant should pay the table amount of child support for the four months between academic semesters.
In McClement v McClement the BC Appeal Court provides a nice summary:
[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. In the result, the appellant has not demonstrated any error in principle in the judge’s exercise of discretion to make an order under s. 3(2)(b).
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