By Chantal M. Cattermole, Sarah Tradewell and Adrienne Adams
In British Columbia, child support obligations usually end when a child reaches 19, the age of majority in the province. However, parents with children over 19 may still be obligated to pay child support when their adult children are pursuing post-secondary education.
For the 2020/21 year, a total of 287,523 students were enrolled in post-secondary institutions in British Columbia.[1] Approximately 40% of students in post-secondary studies across Canada reside at home with at least one of their parents, a statistic that has remained relatively consistent since 2001.[2] With a significant number of adult children living at home during post-secondary studies, it is important to understand parental support obligations.
This article details the legislative basis for entitlement to adult child support, factors a court will consider in determining entitlement, application of the factors for initial and subsequent degrees, and a brief explanation for calculating the amount of child support.
Entitlement to Adult Child Support
The federal Divorce Act governs child support in situations where the parents were married and have divorced. Under the Divorce Act, entitlement to adult child support depends on whether the adult child is considered a “child of the marriage”.
Section 2 of the Divorce Act defines “child of the marriage” as a child of two former spouses who is the age of majority or over and under their parents’ charge but unable, because of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life. It is well established in Canadian law that “other cause” may include attendance at a post-secondary institution.[3]
The British Columbia Family Law Act governs child support in situations where the parents were never married, or married and separated, but are not divorced. Under the Family Law Act, for the purposes of child support, a “child” is defined as including a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of their parents or guardians. Courts in British Columbia have held that the pursuit of education necessary to provide a child with a career qualifies as “another reason” for continuing dependence of an adult child.[4]
The Farden Factors
Although both the federal and provincial legislation provide for the possibility of entitlement to child support for adult children enrolled in post-secondary education, the onus is on the claimant to prove that the adult is still a “child of the marriage”. Courts must determine whether the pursuit of education is a valid reason for continued dependence on the parents. To do this, courts must consider whether the child’s educational pursuits are reasonable and whether it is appropriate that these pursuits be financed by the parents.[5]
The determination of entitlement is complex, and the British Columbia Supreme Court, in Farden v Farden,[6] set out eight factors to assist in the analysis:
- whether the child is enrolled in a course of studies and whether it is full-time or part-time;
- whether or not the child has applied for or is eligible for student loans or other financial assistance;
- 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;
- the ability of the child to contribute to their own support through part-time employment;
- the age of the child;
- the child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;
- what plans the parents made for the education of their children, particularly where those plans were made during cohabitation; and
- 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 with the parent from whom support is sought.
The Farden factors are not a mandatory checklist and therefore it is not necessary to establish all of the factors listed above. However, the factors should be considered in a court’s determination of entitlement and whether the child’s situation is consistent with the definition of “child of the marriage” in the Divorce Act or “child” in the Family Law Act.
Application of the Farden Factors
Courts have held that “child of the marriage” should be interpreted broadly and, in applying the Farden Factors, have found that there is a child support obligation for adult children pursuing their first undergraduate degree.
Courts in BC have also used the Farden factors to determine whether child support obligations should continue for the pursuit of graduate degrees or second degrees in a completely new field of study. The analysis for further entitlement for additional studies becomes increasingly stricter and can vary significantly based on each family’s circumstances.
Where courts have found an adult child support obligation, they have considered the family’s financial means as well as the parents’ expectations and education level.
In Krupa v Krupa,[7] the BC Supreme Court considered the Farden factors in determining whether there were parental support obligations for a 23-year-old child that had completed a post-graduate degree. In deciding that retroactive child support was payable, the court considered that the adult child had been committed to furthering his education, he had received a scholarship to attend school, and his parents each owned substantial assets. The court also discussed that it was “strange” that the father had a Ph.D. but would not support his son’s post-graduate educational goals. The court found that the family’s education level and financial means warranted an order for adult child support.
In situations where courts have denied adult child support applications for post graduate studies, the opportunity for an adult child to work and make reasonable efforts to provide for their own maintenance was a determinative factor.
In Malbon v Malbon,[8] the BC Supreme Court dismissed a mother’s application for child support from the father for their 27-year-old daughter pursuing a master’s degree. The mother claimed that the daughter was once again a “child of the marriage” because as a university postgraduate student, she remained dependent on her parents’ support. In dismissing the application, the court considered that the father had paid support for the daughter’s undergraduate training and that he had never intended to continue support for postgraduate work. The father claimed that he would help the daughter voluntarily with tuition and other expenses. Still, he argued that the daughter had reached the age where she must be responsible for herself and denied any legal obligation to pay her bills. The court, in agreeing with the father, also considered that the daughter had taken a two-year break to work and travel after her undergraduate studies. It further found that she had the opportunity to make reasonable efforts to provide for her own maintenance during her return to post-graduate studies.
Quantum of Adult Child Support
Once a determination is made that an adult child is a “child of the marriage”, it is necessary for the courts to consider the Federal Child Support Guidelines and authorities to determine what amount the payor parent should pay as child support.
For a child over the age of majority, it is possible to depart from the usual Guidelines approach per s. 3(2). Section 3(2) of the Guidelines provides that where a child 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 Tome v Furtado,[9] the court explained that the more closely the circumstances of an adult child resemble those of a minor child living at home, the less likely it is that the approach in s. 3(2)(a) will be found to be inappropriate.
While each case must be assessed on its facts, courts have held that support for an adult child attending a post-secondary institution should generally be determined per s. 3(2)(b) of the Guidelines. As stated above, a determinative factor is that adult children are obliged to make a reasonable contribution to their own education.
If you or someone you know has questions about adult child support, please contact Chantal Cattermole or anyone in the Clark Wilson Family Law group for more information.
References
[1] Statista, Number of students enrolled in postsecondary institutions in Canada in 2020/21, by province (November 2022), online: <www.statista.com/statistics/447802/enrollment-of-postsecondary-students-in-canada-by-province/>.
[2] Alex Usher and Tiffany MacLennan, 20 Years of Data on Canadian Undergraduate Students – Part 2 (23 September 2021), Higher Education Strategy Associates, online: <www.higheredstrategy.com/20-years-of-data-on-canadian-undergraduate-students-part-2/>.
[3] Neufeld v Neufeld, 2005 BCCA 7.
[4] W.P.N. v. B.J.N., 2005 BCCA 7.
[5] Nordeen v Nordeen, 2013 BCCA 178 at para 16.
