“Here, section 3(2) of the Guidelines is engaged by William’s argument that the Michelle and Marcie are now 18. The approach under section 3(2) of the Guidelines is explained in Lewi v Lewi, 2006 CanLII 15446 at paras 124-32. Under section 3(2)(a), the amount of support for a child over the age of majority is calculated in the same way as that for a minor child. The opening words of section 3(2)(b) indicate that the amount determined by applying section 3(2)(a) is the presumptive amount. Section 3(2)(a), by adopting the same approach for children of majority age that applies to minor children, fosters predictability, consistency, and efficiency in resolving disputes over the amount of support for children of majority age.
Section 3(2)(b) only comes into play “if the court considers that approach to be inappropriate”. The words “that approach” refer to the technique dictated by section 3(2)(a)—namely applying the Guidelines “as if the child were under the age of majority”. Before resorting to its discretion under section 3(2)(b), the court must conclude that it is inappropriate to apply the Guidelines as if the adult child were a minor. The court cannot depart from the application of the Guidelines simply because it considers the “amount” determined under section 3(2)(a) (the table amount or additional expenses under section 7) to be inappropriate. It must be satisfied that the standard Guidelines approach is inappropriate—clearly an “exceptional situation” rather than the rule. This approach further promotes predictability, consistency, and efficiency in family law litigation.
In Park, at para 28, the Court of Appeal quoted Justice Heeney’s decision in Merritt v Merritt, [1999] OJ no 1732 (Sup Ct) discussing “summer support”:
Where, however, a child is residing in another residence for the bulk of the year, it seems inappropriate to apply tables that are not designed with that living arrangement in mind. Furthermore, the table approach assumes that the recipient parent discharges her obligation by being physically in the same household and providing the family home and other amenities for the child. Where a child is at college, this assumption does not hold true. It therefore seems more appropriate to calculate the actual costs of providing for the needs of the child in his other residence, factoring in a contribution toward the cost of maintaining the family home to return to on weekends and school breaks where appropriate, and apportion that between the spouses on a Paras approach after considering the child’s own ability to contribute.
That said, the Court of Appeal in Park did not opine on whether summer support is always more appropriate under the Guidelines when an adult child is attending post-secondary school away from home. It remanded the matter back to the application judge to consider whether summer support was more appropriate, in part because there was “very little evidence” on this issue.
The Guidelines do not say that the amount of child support should be different just because a child is 18 years old. The presumptive order is the table amount. It is only where the payor, who has the onus of proof, convinces the court that the table amount is inappropriate, that a different amount may be ordered. See Merritt, at para 55.”