October 17, 2023 – Excellent Review of Principles for Whether Child Entitled to Support When Attending School

“Where, as in this case, it is alleged that the child cannot withdraw from parental control due to enrolment in an educational program, the court must carefully consider the child’s overall financial and daily living circumstances, and whether the child’s participation in the program is reasonably necessary in order for the child to achieve a level of self-sufficiency that is commensurate with the child’s interests and aptitude.  The case-law respecting entitlement to child support under the Divorce Act (R.S.C. 1985 c. 3 (2nd Supp.), as am. provides valuable guidance respecting the factors that the court should take into account in deciding entitlement for adult children involved in ongoing studies.    Under the Divorce Act, a child of the relationship who is eighteen years of age or older and enrolled in post-secondary studies may be entitled to support if they are under parental charge and unable to withdraw from that charge or to obtain the necessaries of life.  The case-law has clarified that in order to establish that a child is unable to withdraw from parental charge due to enrolment in ongoing educational studies, the court must be satisfied that the child’s educational plan is reasonable taking into account the child’s abilities, the plans and expectations of the parents in regard to the child’s post-secondary education, and the needs and means of the child and the parents.  As the Saskatchewan Court of Appeal stated in Geran v. Geran, 2011 SKCA 55 (CanLII), 2011 CarswellSask 333 (C.A.) at para. 15, the ultimate question in deciding the issue of entitlement in these circumstances is whether the child is “unable without the direct or indirect financial assistance of the parents to pursue a reasonable course of post-secondary education to the end of bettering the future prospects of the child.”  The courts have outlined a number of factors which should be considered in answering this question.  The following is a collective list of some of the factors, as derived from the cases of Whitton v. Whitton (1989), 21 R.F.L. (3d) 261 (Ont. C.A.), Farden v. Farden (1993), 1993 CanLII 2570 (BC SC), 48 R.F.L. (3d) 60 (B.C. Master), Darlington v. Darlington (1997), 1997 CanLII 3893 (BC CA), 32 R.F.L. (4th) 406 (B.C.C.A.)  Bradley v. Zaba (1996), 1996 CanLII 4930 (SK CA), 18 R.F.L. (4th) 1 (Sask. C.A.),  Geran v. Geran, Supra.,  Rebenchuk v. Rebenchuk, Supra.,  Haist v. Haist 2010 ONSC 1283 (CanLII), 2010 83 R.F.L. (6th) 147 (Ont. S.C.J.) and Caterini v. Zaccaria, 2010 ONSC 6473 (CanLII), 2010 CarswellOnt 9344 (S.C.J.):

        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 age, qualifications and experience of the child.
        7. The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility.
        8. Whether the child is performing well in the chosen course of studies.
        9. 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.
        10. The means, needs and other circumstances of the parents and the child.
        11. 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.

The courts have held that it is not necessary to address all of the factors set out above to prove that the child remains entitled to support (Darlington v. Darlington, Supra.; Wesemann v. Wesemann (1999), 1999 CanLII 5873 (BC SC), 49 R.F.L. (4th) 435 (B.C. S.C.) at para. 11).”

            Meyer v. Content, 2014 ONSC 6001 (CanLII) at 32-33