Miller v. Mitchell, 2013 CarswellOnt 15556 (Ont. S.C.J.)

This case involved an unusual child support application. The applicant was the 23-year-old son of the Respondent parents who were divorced from each other. There was some estrangement between the child and his father. The child claimed support from his parents to help cover the costs of his attendance at university. The child was in his final year of an undergraduate program at McMaster University and had been enrolled since September 2010.

Justice Parayeski found that the applicant was a child of the marriage pursuant to the Divorce Act and was therefore entitled to support by virtue of his being a full-time university student. However, although the child was certainly a child of the marriage, there wasn't actually an application under the Divorce Act as the applicant was the child and not a party to the divorce. There was no discussion about whether the child had a right to receive support directly as opposed to bringing a claim through one parent with whom the child resides, which is how these applications are typically brought.

The annual expenses for the child's university attendance averaged approximately $18,000.00. Justice Parayeski believed this amount was reasonable as it reflected a modest lifestyle. He further found that the child could pay for one-third of that by working full-time at minimum wage for the summer, which he had already been doing while financing the shortfall between his earnings and expenses with OSAP loans. He ordered that the remaining two-thirds ($12,000.00) should be paid by the respondent parents in proportion to their relative incomes.

Retroactivity and Ongoing Payment

The child also requested that his parents be ordered to pay support retroactive to the commencement of the 2010-2011 academic year, when he began his post-secondary studies. Justice Parayeski thought this would be unfair. While the father previously resisted child support payments, he did so partially upon the basis of a prior court order that was in good standing. The mother assisted the child financially throughout the prior years and the applicant’s requests for financial assistance before commencing this application were sporadic and unspecific. The judge therefore believed the parents should each only pay one year’s worth of arrears followed by monthly payments.

Duration of Support

The final issue in this case was how long child support payments should continue. Justice Parayeski ordered the following:

"The support payments shall continue for so long as the applicant is attending university on a full-time basis. The old rule of thumb that only a first degree should be contributed to by the parents has been eclipsed by the present reality, in respect of which I take judicial notice, that such a degree no longer provides an automatic entrée to remunerative employment."

Overall, this case demonstrates the ability of an adult child of divorced parents attending post-secondary education to successfully bring a claim for child support against each parent, even if the child has withdrawn from both parents' charge. It is an interesting case and one the lies outside the usual realm of child support applications in Ontario.