Is Child Support Owed In Alberta For Children In Post-Secondary Studies?
Child support does not always end when a child reaches the age of 18. Post secondary support may be payable past that time. As a general rule, child support remains payable for a child over the age of 18 years of age who is enrolled in full time or part time studies at a recognized educational institution.
When Does The Child Support End?
If the child’s parent were never married, pursuant to the Family Law Act the Child must be enrolled in full time studies to receive post secondary support and the support will end at 22 years of age regardless of the child’s status or position in the program.
If the child’s parent were married, pursuant to the divorce Act there is no definitive end date for support. The child may be able to be enrolled in part time studies but will be required to demonstrate that they are reasonably and diligently pursuing their studies as well as provide a reason for why only part time studies are being taken.
Who Can File An Application For Post Secondary Support?
If the child’s parents were married then one of the parents must file the application seeking support. The Divorce Act only allows “spouses” to commence an application. It is also noteworthy that if parents agree the child will not receive any support and they enter into a Consent Order under the Divorce Act outlining this agreement, the Child has no ability to change the Order or seek support from the parents.
If the child’s parents were not married, then under the Family Law Act either the child, a guardian or a parent can file the application for support. A Family Law Act application can not be made by a party wherein they are seeking to amend or vary a support order made under the Divorce Act.
When Should An Application For School Support Be Filed?
The Application for either financial disclosure or the application for child support MUST be filed while the child is still enrolled in Post-Secondary studies. It cannot be filed after the completion date of the studies.
Does the Child Have to Contribute?
The amount of post secondary support that each parent pays varies based on the means, needs of the parents and the child.
Unlike children under the age of 18, the Court will examine a Child’s ability to contribute to their own expenses now that they are over the age of majority. If the Child is earning an income during their studies, has access to scholarships, gifts from third parties, the ability to access student loans or any other funds all of these sources of funding will be taken into consideration prior to looking at the parent’s obligation to contribute.
Most recently courts have started to use a “laddered approach”. In this situation the Court expects a Child to contribute more to their studies after each year of their studies.
Note, in situations of high-income families the Child may not be ordered to contribute at all.
How do we determine is the Standard Approach should be used?
The more similar the circumstances of the Child are to that of a minor the more likely the standards Child Support Guideline Approach will be taken with the base support being ordered and then section 7’s being paid by the parents in proportion to their income.
Top 3 Factors to Consider to ‘deviate’ from the standard approach:
1. Is the Child living at home?
2. Does the Child have a considerable income?
3. Does the Child have an asset base?
If the Answer to any of these is yes, then the Standard Approach should not apply, and a more Holistic Approach should be taken. Note, it should always be argued that the Standard Approach should not apply and the Holistic Approach should be taken as it is reasonable to expect the Child to contribute to their expenses in part.
What Is The Holistic Approach To Determining Support?
If the Child has an income, access to funds or is attending school out of town or living on their own, the first step is to have him or her complete a year-round budget in which include all of their projected expenses, including any summer expenses.
Following the budget review and gathering all the information from the parties, the parties must then look at what the Child can reasonably contribute towards their own expenses with the net remaining expenses to be then paid for by the parents. This does not have to be paid for in proportion to their income (unlike regular Section 7 expenses).
Who Can The Post Secondary Support Be Paid To?
Depending on the circumstances, post secondary support payment funds flow to the:
- Other parent;
- Child directly; or
- Even the third parties such as the schools directly.
It is recommended that payments not be made to the Child directly unless it has been set out in a Court Order or agreed upon in writing in advance as these payments may not be counted as fulfilling child support obligations if reviewed at a later date, especially if the payments were for a vehicle, vehicle insurance, cell phones or other ‘extra’ expenses not necessarily required for the Child’s attendance at school.
What Facts Will A Judge Consider When Ordering Support?
The issue of post-secondary child support is highly discretionary. This means judges make decisions that often lack a standard predictable basic framework.
A judge will analyze the particular facts of each file when making a determination of what is reasonable in the circumstances based on the evidence before them. Some factors the judge will consider and which may have the effect of reducing the Child support obligation include the following if:
- There has been a breakdown of the parent–child relationship that can be attributed to the actions of the Child only.
- A Child has not been diligently pursuing their education or is jumping from program to program with no clear education plan or career goal.
- any Child has taken a pro-longed period off after high school and has been living independently throughout that period of time thereby leaving the parents to believe their support obligation has ended already.
- Children have a poor academic history or is failing to produce results in their selected program of studies.
- There are other Children for whom the parents still owe a support.
- The overall financial means and circumstances of the parents and their ability to contribute to these extra-ordinary expenses.
- A situation exists where the child has access to capital or income such that they do not actually require financial assistance from their parents (ie. an apprenticeship programs where a student can earn $35,000 annually).
How Are RESP’s Used For Post Secondary Support?
Any RESP’s saved during the parent’s relationship and held joint property in the parents’ names are the first funds used to fund a child’s post-secondary related expenses.
If the Child has any RESP’s that have been gifted to them by third parties, these funds, as a general rule, are the property of the Child and will be used prior to looking towards the parents to contribute. Note, these funds may be spread out over the expected duration of the Child’s education if that makes the most sense.
Any savings or RESP’s that a parent has is in their name is the sole property of that Parent. These funds are to be applied towards that parent’s financial obligation to contribute to the Child’s expenses. One parent cannot rely on the other’s RESP savings.
If there are significant savings for the Child, these funds are to be used during the Child’s first degree only. The Courts have not accepted the “nest egg” argument of wishing to maintain funds for a potential second degree.
Post Secondary Support For University For Children
At Kahane Law, in Calgary Alberta, our family law lawyers can help with post secondary support. We will provide a flat rate review and assessment of this issue so you know your options. Call today 403-225-8810 (toll-free at 1-877-225-8817), or email us directly here.