How do you calculate the amount of child support for a child who is 19 or older and attending post-secondary education?
Circumstances can vary significantly among children attending post-secondary education. To provide a few obvious examples of this:
- Some children will live with one of their parents while attending school, others will not.
- The cost of tuition will depend on the school and program.
- Some children will be able to contribute to their expenses, while others will not.
- Some families have set aside money to pay for their children’s educations; others have not.
- Some parents may earn an income that allows them to pay for a higher proportion of their children’s expenses.
- Some children receive grants and bursaries to help with their costs, while others do not.
Use the usual approach to calculating child support, unless that approach is inappropriate
It would be impossible to create a single formula that would be fair to all parents and children. Federal Child Support Guidelines take a flexible approach to child support for children who are 19 or older and attending post-secondary education. Subsection 3(2) says:
(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order 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 spouse to contribute to the support of the child.
In other words, the default rule applies unless that would be “inappropriate”.
In the case of Wesemann v. Wesemann, 1999 CanLII 5873 (BC SC) Madam Justice Martinson explained the four steps to determine child support for a child 19 or older:
Step One: Decide if the child is still entitled to support.Is the child unable to withdraw from the care or charge of a parent or obtain the necessaries of life? Look at the Farden factors.
Step Two: Does one of the parents believe that it is inappropriate to apply the Guidelines as if the child were under the age of majority? If not, use the default rule as if the child were under the age of majority.
Step Three: If one of the parents believes that it is inappropriate to apply the usual approach to calculating child support, they will need to prove that it is inappropriate to apply the usual approach. If they cannot, then child support will be determined using the default rule.
Step Four: If it is determined that it is inappropriate to use the default rule to calculate child support, the Court must decide on an amount of child support by looking at the condition, means, needs and other circumstances of the child and the financial ability of each parent to contribute to the child’s support.
When is it inappropriate to determine the child support as if the child were under the age of majority?
The amount of child support payable for a child under the age of majority is based on several assumptions. Those assumptions include that the child is living with a parent and that parent incurs the cost of housing the child and so on. The living situation of a child who is 19 or old can look very different from the assumptions that underly child support for a child under the age of 19. It is not unusual for a child to attend university away from home. The more a child’s living situation differs from those underlying assumptions, the more likely it is that it is inappropriate to determine the amount of child support as if the child were under the age of 19. If the child lives with a parent for part of the year and attends university away from home for the rest of the year, then it could be that the table amount is payable for the months that the child lives with the parent, but the amount is inappropriate for the months that the child is living away from home.
Brennan J. Clarkson has helped clients with family law disputes including divorces and common law separations since 2008. He practices family and estate law in Port Moody, British Columbia at Clarkson Law Corporation.
Contact Clarkson Law Corporation today for a free 30 minute consultation.