By Kathleen Wells, Wells Family Law
When families with small children separate, it is generally accepted that the parent who does not have primary parenting of the child must pay some measure of child support, yet there is often confusion about how long they must continue to pay support for. It is a common misconception that child support must be paid until the child turns 18 years of age: this is the age of majority in Alberta, at which point a child is legally considered an adult. However, in some circumstances, even though the child is 18 years of age or older, they may still be considered by the court to be a child of the marriage, and therefore entitled to receive child support even after they are legally an adult.
According to the Federal Child Support Guidelines and the federal Divorce Act , child support must be paid for all children who are considered to be a “child of the marriage.” The Divorce Act defines a child of the marriage as:
- A child who is under the age of majority and who has not withdrawn from the charge of the parents, or
- A child who is the age of majority or older and under the charge of the parents but is unable, by reason of illness, disability, or other cause, to withdraw from the charge of the parents or to obtain the necessaries of life .
Whether or not a child over the age of 18 is considered to be a “child of the marriage” will be determined on a case-by case-basis.
While every situation is unique, and the needs and means of every family are different, in general the courts consider a child who is over the age of majority and attending a post-secondary institution to be a child of the marriage. Support may be payable for a child enrolled in full-time or even part-time studies at a recognized post-secondary school. Either the custodial parent or the child themselves may file the application seeking support.
Another difference between paying support for a minor child and a child over the age of 18 is that the court can order that the support payments for the overage child be paid directly to the child (instead of being paid to the other parent for the benefit of the child).
A major difference between the amount of child support payable to a child under 18 and a child over 18 is that the court will consider the ability of the overage child to contribute to their own expenses and education. Things like scholarships, part-time jobs, and the ability to get a student loan will all be factors that the court will consider when ordering support to be paid to a child over 18. Other factors that courts will look at before ordering support include:
- The age of the child;
- Whether or not the child still lives at home;
- Whether or not the child is enrolled in studies on a full-time or a part-time basis;
- The area of study of the child and their academic performance;
- The child’s career plans;
- Any plans the parents have made for the payment of the child’s education; and
- Any additional sources of financial contribution, such as an RESP.
In general, the amount of child support payable is established pursuant to s. 3 of the Federal Child Support Guidelines. When a child is over the age of majority, the appropriate section of the Guidelines for determining support is section 7 . This section classifies special or extraordinary expenses and includes expenses for post-secondary education – for example, books and tuition fees.
In recent years, the courts have taken to adopting a “laddered approach” in terms of the amount that must be paid for a child’s post-secondary education. Essentially, what the laddered approach means is that over the term of the child’s course of study, the child will contribute more and more each year towards their education. As each year goes by, the child is expected to pay for increasingly more of their own education.
The courts have suggested that in the first year of post-secondary education between the end of high school and the start of university, a child will only have had two months of employment to save for school – likely not a very substantial amount of savings. In the second year, this typically increases to four months. By the third year of study, the child will have learned how to operate in a university environment, and obtaining a part-time job while going to school is not unreasonable. In the final years of study, the student will have had enough work experience that their summer income will be higher. Eventually, the child may be able to fund their own education and the paying parent can apply to cease child support payments.
In addition to the federal Divorce Act, Alberta has several laws dealing with child support and how it will be paid. One of these is the Family Law Act, which governs child support for adult children, among other things. This law has been very recently amended; the new amendments make it clear that the same rules apply to all families when they make an application for child support for overage children. Going forward, the rules in the Divorce Act will govern child support for children attending post-secondary institutions.
If you have questions about child support and post-secondary education costs, please CONTACT Wells Family Law for a free consultation – we are Calgary-based divorce lawyers who are committed to a fast and effective resolution.