Background

This decision, written by Justice Stanley Kershman, deals with a numerous child support issues including support for adult children, retroactive claims when a child is no longer considered a child of the marriage, who can direct an RESP, and section 7 expenses.

In this case, the parties had settled the child support issues for the three children of the marriage, however, the father moved to terminate support for all three children, or at least attempt to vary it. The father sought to terminate support for the youngest child because the child was living away from home and had finished a first degree. The father also sought directions about a joint RESP.

Analysis

Living Away From Home During the School Year

With respect to living away from home during the school year, the father argued that child support should only be paid while the children are at home during the summer months and no support should be paid when the children are living out of town for school. Conversely, the mother argues that child support should be paid year-round regardless of whether the children are living at home or are away at school. In this case, Justice Kershman noted that all three children went to university out of town.

Section 3.2 of the Child Support Guidelines (CSG) establishes that guidelines child support should be paid for children over the age of eighteen years old, unless the court considers this approach to be inappropriate.

Further to section 3.2 of the CSG, Justice Kershman held that it was not appropriate for the Table amount of child support to be paid for an adult child who was not living at home while attending school. While Justice Kershman was sympathetic to the fact that a home must be maintained for the children while they are away at school. In this case, at one point, all three children were away at university, thus, the basic amount of child support should not be paid for the time that the children are away at school.

Justice Kershman held that during the months that the children are away at school, their expenses are to be shared by the parents based on a proportionate sharing of s.7 expenses and no basic child support should be paid during that time.

Support Beyond the First University Degree

The father argued that his obligation to support one of the children, including his contribution to expenses for education and daily living, should be terminated following the completion of the first post-secondary degree.

In Canada, there are various cases wherein the courts have awarded support for adult children attending post-secondary education beyond a first degree, including Martell v Height (NS CA) and Menegaldo v Menegaldo (Ont. SCJ).

In Menegaldo, Justice Chappel set out a list of 12 factors to consider before making a child support award for an adult child. The 12 factors are the following:

1. Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies.
2. Whether the child has applied for or is eligible for student loans or other financial assistance, or has received any bursaries or scholarships, and if so, the amounts received.
3. The ability of the child to contribute to their own support through part time employment.
4. Whether the child has a reasonable and appropriate education and career plan, or whether they are simply attending an ongoing educational program because there is nothing better to do.
5. In reviewing the child’s education and career plan, important factors include the nature and quality of the plan, the duration of the proposed study period, the prospects of the child succeeding in the program, the potential benefit of the studies and the associated cost of the course of study.
6. The child’s academic performance, and whether the child is demonstrating success in the chosen course of studies.
7. The age, qualifications and experience of the child.
8. The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility.
9. Whether the child is performing well in the chosen course of studies.
10. What plans the parents made for the education of their children, particularly where those plans were made during cohabitation. In considering this factor, the court should bear in mind that reasonable parents are ordinarily concerned about treating each of their children comparatively equally.
11. The means, needs and other circumstances of the parents and the child.
12. The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress. If a child is unwilling to remain accountable, or has unilaterally and without justification terminated their relationship with a parent, they may have difficulty establishing that they are unable to withdraw from parental charge based on a reasonable course of post-secondary education.

In this case, Justice Kershman found that the child should have summer employment to help contribute towards his education and imputes $5,000 to the child. He also found that it is reasonable that the child complete a master's program on a full-time basis. As such, the child is entitled to child support and a proportionate share of s.7 expenses from the father taking into account the child's amounts received by way of income and $5,000 of imputed income.

Joint RESP and Remaining Educational Costs

The father argued that the parties joint RESP should be applied towards one of the children's remaining educational costs, whether it be for his first degree or his second degree, because it would reduce his liability to pay child support and section 7 expenses. Whereas, the mother argued that the joint RESP should not be applied to the child's education costs because his portion of the RESP was already used in obtaining his first degree.

Justice Kershman noted that the parent's set up the RESP for all three children with the expectation that each of them would obtain a post-secondary education. Thus, in the courts view, both parent's understood that there would be RESP funds for each child. Therefore, each of the three children should be given equal access to the RESPs that were created by both parents.

Retroactive Adjustment of Child Support and Section 7 Expenses

One of the most interesting aspects of this case is whether the mother can claim retroactive child support and section 7 expenses as this claim is made for children who are no longer children of the marriage as defined under the Divorce Act.

In the Supreme Court of Canada case, S(B) v G(SR), 31 RFL (6th) 1 [DBS], the Court made it clear that in order to entertain an application for retroactive support, the child must be a child of the marriage as defined under the Divorce Act, as of the date of the application.

The mother argued that the rule in DBS does not apply to a variation application under section 17 of the Divorce Act. Justice Kershman noted that DBS was decided in the context of an originating application for child support and the courts have been reluctant to apply this interpretation to variation applications brought under section 17 of the Divorce Act. Following same, Justice Kershman held that the court has jurisdiction to deal with retroactive support despite the fact that two of the children were no longer children of the marriage at the date of the variation application.

Justice Kershman noted that child support extends back three years from the date of the request for the adjustment in the absence of blameworthy conduct. The rationale for this rule comes from the provisions of the Child Support Guidelines, which limit a request for historical income information to the previous three years. In this case, the mother made a written request for income information in October 2010, thus the court was able to go back to 2010 to allow for payment of child support and section 7 expenses.