Child Support For Children Over The Age Of Majority: Coté v. Coté, 2015 ONSC 6924
Given the increasing demand for further education in the marketplace, and the challenges that now face young adults trying to break into the workforce, it is no surprise that children are now becoming financially independent well into their adult years. As such, child support payors may be concerned about whether and how much child support should be paid for their adult children.
This case addresses the issue of whether a parent must continue to pay child support for children over the age of majority and, if so, in what amount.
The parties had two children for whom the father paid child support pursuant to a final court order made in 2007. The father was further ordered in 2008 to contribute a set monthly amount toward special and extraordinary expenses in addition to 59% of the children’s medical and dental expenses.
The father was a Research Scientist earning an average of $136,500.00 per year. The mother was a teacher earning approximately $94,000.00 per year.
The children, ages 20 and 22 at the time of the motion, both resided with the mother and attended full-time post-secondary school.
The 22-year-old daughter earned a diploma from a Physiotherapy Assistant program in 2015 and then commenced the first year of a four-year Human Kinetics program. In 2014, she earned $9,525.31 working part-time.
The 20-year-old son began a two-year Electronics Technician program in 2013 and is now enrolled in a three-year Mechanical Technologist program. He earned part-time income of $10,020.76 in 2014.
The father claimed that the mother did not provide disclosure with respect to the children’s post-secondary education despite several requests for same, however, he made no financial contribution to the children’s post-secondary education.
The father sought to vary the 2007 order so as to end his support obligations and contributions to special and extraordinary expenses for both children.
The court held the following:
- Both children were unable to support themselves financially because of full-time studies and, thus, they remained “children of the marriage” and they were entitled to support.
- The quantum of support called for by the CSG (the same as if the children were under age 18) would be appropriate in this case. Although said amount was higher than the 2007 court ordered amount due to increases in the father’s income, the court ordered that support in this case would continue in the amount ordered in 2007 since the mother did not seek any increase.
- The father must contribute 1/3 of the cost of each child’s post-secondary expenses from September 2015 onward, pending receipt of full disclosure regarding the children’s study programs “including curriculum, grades and attendance requirements” for the same period. The mother and each child were also each required to contribute 1/3 of the expenses.
- The father’s support obligations would end upon completion of each child’s current program of study.
Child of the Marriage
To determine support obligations for a child over the age of majority, the court must first determine if the child falls under the definition of “child of the marriage” pursuant to section 2(1)(a) of the Divorce Act. Under section 2(1)(a), the child must be under a parent’s care and unable to provide for himself to obtain the necessaries of life, which is a question of fact to assess on a case-by-case basis.
The mother in this case argued that both children remained children of the marriage. The court considered the following factors, as set out in Rosenberg v. Rosenberg (2003), 42 R.F.L. (5th) 440, for each child to determine whether he or she was unable to provide for him or herself due to post-secondary education:
- actual enrolment in a course of study and whether full-time or part-time;
- applications or eligibility for student loans or other financial assistance;
- career plans of the child;
- ability to contribute to his or her support through part-time employment;
- past academic performance;
- any plans the parents had made for the children’s education; and
- whether the child has unilaterally terminated a relationship with the parent from whom support is sought.
The court found the son was a child of the marriage based on the following:
- He was enrolled in full-time studies;
- His career plan to be a Mechanical Technologist was “settled and reasonable”;
- He has worked part-time, earning only $10,020.76 in 2014;
- He was only 20 years old and still resided with his mother; and
- His mother provided for most of his living expenses and school expenses, as he was largely financially dependent on his mother due to his full-time post-secondary studies.
The court found that it was within the parents’ reasonable contemplation that their children would attend post-secondary school given the education level of the parents. Given that both children were found to be unable to support themselves due to full-time studies, the court determined that both children were still children of the marriage and entitled to financial support.
Quantum of Support
If support is payable for children over the age of majority, subsections 3(2) and 7 of the CSG govern the quantum of support as follows:
- Subsection 3(2)(a) states that the support amount is the same as that set out in the CSG for children under the age of majority, unless otherwise specified in the CSG.
- Subsection 3(2)(b) gives the court discretion to order support in an amount the court considers appropriate if the amount pursuant to subsection 3(2)(a) would be inappropriate “having regard to the conditions, means, needs and other circumstances of the child” and each parent’s financial ability to contribute to the child’s support.
- Section 7 provides that a court may order an amount sufficient to pay all or part of the estimated or actual cost of the following expenses, considering “necessity of the expense” with respect to best interests of the child, “reasonableness of the expense” in light of the means of the parents and child, and the family’s pre-separation spending patterns:
(d) extraordinary expenses for any educational programs that meet the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities
After deducting any contribution from the child toward the expenses listed in section 7, each parent’s share the remaining amount should be proportional to the parties’ respective incomes.
The onus to establish that an amount is inappropriate lies with the party seeking to deviate from said amount. In assessing appropriateness, an important consideration is whether the child resides with the support recipient and what contribution that parent is making to the child’s living and education expenses.
In this case, the father sought to reduce support to $0, however, the mother was paying most of the children’s expenses and there was no evidence that the children could earn more than they did through their part-time jobs. Accordingly, the father failed to establish that the CSG amount would be inappropriate in the circumstances.