A "Child" Moving Away to get a PhD: Clarifying the Family Law Definition of Children

Makdissi v. Masson, 2017 ONSC 6498

Background

The Applicant (father) and Respondent (mother) were married in 1993, had two children, separated in 2001 and divorced in 2004. Following separation the parents exercised joint custody in Ottawa, until the Respondent moved to Drummondville, Quebec in 2010. In 2011, a child support regime was established based on the Respondent's annual income of $583,700 and the Applicant's income of $127,000. The Respondent was to pay $4000 per month in child support plus 82% of extraordinary expenses.

Their son and daughter were respectively 24 and 22 years old in 2017.

It is expressly stated in the facts that the family strongly values educational achievement. Both children attended University of Ottawa for their respective bachelors and masters degrees, and continued to live in their father's residence. In 2015, their son moved out in order to attend a prestigious doctoral program at the University of Toronto. The fact that he no longer lives in his father's home is an important fact in this case.

Analysis

This dispute asks whether a parent has an obligation to continue paying child support for adult children as they pursue additional post-secondary degrees, in this case a PhD.

The court found that it is not unreasonable in certain circumstances; that there is no "magical bright line cut-off" determining how many university degrees a parent must subsidize through child support. The governing factor is whether the recipient-parent is still financially responsible for the children, because the children remain unable to support themselves. The court emphasizes that dependency of the children is a key consideration.

This requires an analysis of each family on a case-by-case basis. In this case, the court found that, given the combined financial resources of the parents, the expectations and abilities of the children, and representations that were made to the children when they were younger, the children will continue to be considered "children of the marriage" until they complete their post-secondary education, to the extent that they cannot support themselves.

It is worth noting that the Judge placed considerable importance on the fact that the parents' combined annual incomes approached $1,000,000. The Judge noted that whether or not it is reasonable would be quite different if the incomes were far more modest.

The court also analyzed how to calculate those costs. It found that the Divorce Act and the Child Support Guidelines does not recognize an ongoing legal obligation for the Respondent to subsidize the Applicant's household through the child support regime while the children pursue PhD studies away from home. The day that their son moved out of the recipient-parent's home to attend university in another city, all of his expenses are treated as extraordinary expenses and the monthly support must be reduced to reflect the needs of the remaining children living at home.

The son's extraordinary expense is to be calculated by adding the cost of tuition, books, and university incidental fees and other legitimate costs of education. From that amount, all scholarships, bursaries, funding should be deducted. The student must deduct any money he/she earned during the school year, as well as 50% of any income earned through summer employment. The remaining cost is then to be shared by the parents proportionate to their income.

This case does not exactly set a precedent; each case will be decided on the particular circumstances of each family. However, it does provide useful comments on supporting adult children and clarifies that there is no fixed cut-off date in the law.

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