“If the child is not actually enrolled in a full-time program of education by the time their first educational program ends, but is accepted into a further program shortly thereafter, additional legal questions arise: First, can eligibility for child support be revived after it has ended? Second, if eligibility can revive, but there is a gap between the time of enrolment in the subsequent program and the actual commencement of the program, does the eligibility resume as of the date of enrolment or as of the date when classes actually begin? This is an important issue in cases where the period from the time of enrolment until the commencement of the program is lengthy.
Dealing with the first question, a child who loses their entitlement to support by quitting school may regain their entitlement at a later date by meeting the test under the applicable legislation (Lawless v. Asaro, 2003 CarswellOnt 2416(Ont. S.C.J.); Fergusson v. Kurylo, 2005 CarswellSask 167 (Sask. Q.B.); Haley v. Haley, 2008 CarswellOnt 369 (Ont. S.C.J.); Vohra, Supra.) Much of the case-law dealing with this issue has been decided under the Divorce Act, which sets out different criteria for child support eligibility in cases involving children. However, cases decided under the Family Law Acthave also established that entitlement to child support can be revived when a child of the relationship resumes their educational pursuits after taking time off from their studies (Vohra, Supra.; F. (R.L.) v. F. (S.)(1996), 26 R.F.L. (4th) 392 (Ont. Gen. Div.); Murchison v. Farmer, 2013 CarswellOnt 16632(Ont. C.J.)).
As I previously held in Radford v. Nunn, 2011 ONSC 7276 (S.C.J.), the test for determining whether there has been a revival of child support entitlement under the Family Law Actis whether the evidence considered as a whole leads to the conclusion that the child achieved a status of true and meaningful independence from their parents during the time when they were out of school. In determining this issue, the factors to consider include:
- The amount of time that the child took off from school;
- Whether the time off was intended to be temporary for the purpose of saving money for school or for any other purpose aimed at improving the child’s life;
- Whether the child required a period of time to devise a plan for their future;
- Whether the child was exploring educational alternatives during the time in question;
- Whether the child was in fact able to achieve any degree of independence from their parents during the time off school; and
- The child’s living arrangements while they were independent, and in particular whether they were cohabiting in a common law relationship. (Radford, Ibid; MacLean, Supra.)
In general, the longer the time that elapses between the point when entitlement ended and when the moving party seeks to have it reinstated, the more onerous the burden will be on the moving party (Radford, Ibid.; Lawless, Supra.).
I turn to the question of whether a revived entitlement commences as of the date of enrolment in full-time studies or the date when the studies actually begin. In my view, it is open to the court to determine that eligibility for support resumes as of the date of enrolment, provided that the following conditions are met:
- The child was diligent and timely in planning and applying for the further educational programming, and they became enrolled in the program within a reasonable time after their initial program ended;
- The child was ready and willing to commence the subsequent program at the time of enrolment, and did everything within their control to resume their studies as soon as possible after the completion of the first program (Vohra, Supra.);
- The child actually began attending the subsequent program at the earliest possible time that the program was scheduled to begin following the completion of the first program;
- The child remained dependent on their parent and had not withdrawn from parental control at the time of enrolment; and
- The subsequent program was part of a reasonable educational plan, and the child is used the period from the time of enrolment until the commencement of classes to further the implementation of the plan in a meaningful way.
If these criteria are satisfied, the temporary break in the child’s studies is relevant not to the threshold issue of eligibility for support, but rather to the appropriate approach for the support analysis under section 3(2) of the Guidelinesand the extent to which the child should be required to contribute to their own support.”