Many payors of child support are often surprised when they learn that their child support obligations do not necessarily end when their child(ren) become adults. 

For BC the age of majority i.e. adulthood is B.C. 19 years of age.

Frequent questions for family lawyers are: 

  1. How long is child support payable? 

  1. Does a payor continue to have child support obligations once the child reaches the age of majority? 

  1. How does the court assess child support for an adult child?

The courts have consistently affirmed that child support is the right of the child and not the recipient parent.

Every parent has a duty to support their dependent child but in some circumstances that includes a duty to support an adult child. 

The Divorce Act and the BC Family Law Act both include definitions for a “child”. 

In BC, the definition of a child is:

  1. A person under the age of 19; or

  1. A person who is 19 years of age or older and unable because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians

 

Below is a summary on the law on child support for adult children.

 

Table of Contents

Adult Child Attending Full Time Post Secondary Institution

Courts determined Full-time attendance at a post-secondary institution.  As a reason, when child is unable to “withdraw from the charge of his or her parents or guardians,”. Hence eligible for child support.

Full-time student status does not, on its own, create an automatic right to support. 

Full time status also depends on the institutions’ definition of “full time” which in some instances is only a 60% course load. 

Whether child support is payable for an adult child who is attending full time at a post secondary institution depends on:

a. all of the child’s circumstances; and 

b. whether the child’s educational aspirations are reasonable. If they are, the court must then 

        i. consider whether it is appropriate that the pursuits be financed by the parents. 

These questions can be complex and courts have a specific set of factors they consider in making a decision.

Factors the Courts Assess to Determine Child Support for an Adult Child

The courts apply what is often referred to as the “Fardon Factors” in deciding whether child support is payable for an adult child attending a post-secondary institution.  

The Fardon Factors were derived from the case of Farden v. Farden, 1993 CanLII 2570 (BCSC).

Some of the factors consider are: 

a. Age of the child;

b. Whether the program of study is full time or part time study per the institutions guidelines on what is considered a full course load (often 60% course load);

c. whether or not the child has applied for or is eligible for student loans or other financial assistance or grants;

d. the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;

e. the ability of the child to contribute to his own support through part-time employment;

f. the child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;

g. what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;

h. at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought; and

i. Whether it is a first post secondary degree such as a Bachelor’s degree or a second post secondary degree such as a Master’s Degree, medical degree etc.

The courts have emphasized that the Farden Factors are neither a checklist nor a set of statutorily-mandated criteria. Rather, they are considerations for the court in assessing whether the child’s situation warrants payment of child support for a child over the age of majority.

Adult Child Expected to Contribute to Post Secondary Education

There is no specified cut off date for an adult child pursuing a first, second or third post secondary education degree.The court in N. (W.P.) v. N.(B.J.), 2005 BCCA 7 specifically affirmed this proposition:

that there is “no arbitrary cut off for child support” and that eligibility is dependent on the circumstances of the child. The court in its decision stated: 

[42] She also rejected the notion that an adult child could not become or regain the status of a child of the marriage for the purpose of obtaining a second degree and found there was no arbitrary cut-off for a child seeking to maintain or regain the status of “a child of the marriage”: 2012 BCCA 465 (CanLII)De Beck v. De Beck Page 14

[29] There is no general principle that a child seeking a second degree does not qualify for child support. As stated by Freeman J.A. for the Nova Scotia Court of Appeal in Martel v. Height (1994), 3 R.F.L. (4th) 104 [(N.S.C.A.)] at para. 8:

There is no arbitrary cut-off point based either on age or scholastic attainment, although as these increase the onus of proving dependency grows heavier.

 

 

[30] The jurisprudence supports the view that there is a wide range of factors to be considered in the determination of whether a child is a “child of the marriage” and that individual factors will be of varying importance in different cases. All of the relevant factors must be considered. There is no arbitrary cut-off point based on the number of degrees or the eligibility of the student for financial assistance.

According to the courts, there is an expectation that an adult child contributes to their education.

The courts usually find that the child is expected to contribute to a reasonable amount of their own expenses, when an adult child is attending a post secondary institution.

This higher or more specialized the education the greater the requirement for a contribution by the child.

For example, for a second post secondary degree such as a professional degree like medicine or law, there have been varied decisions as to whether child support obligation continues. If child support obligation continues, the court place a higher expectation that the child contribute to their own expenses for a second degree.

Departure from the Table Amounts of Child Support

There is no discretion to depart from the Federal Child Support Guideline table amounts for a minor child.

But there is discretion to depart from the Federal Child Support Guideline table amounts for an adult child. Particularly where the child is living away from home.

In Wesemann v. Wesemann1999 CanLII 5873 (BC SC), the court set out a four-part test for determining whether the Guidelines should be followed in a situation where an adult child is attending a post-secondary institution:

6         The law with respect to support for children over the age of majority can be looked at as a four-step procedure:

Step One

Decide whether the child is a “child of the marriage” as defined in the Divorce Act? Matter is ended if he is not.

Step Two

Determine whether the approach of applying the Guidelines as if the child were under the age of majority (“the usual Guidelines approach”) is challenged. If that approach is not challenged, determine the amount payable based on the usual Guidelines approach.

Step Three

If the usual Guidelines approach is challenged, decide whether the challenger has proven that the usual Guidelines approach is inappropriate. If not, the usual Guidelines amount applies.

Step Four

If the usual Guidelines approach is inappropriate, decide what amount is appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child?

Circumstances to Depart from the Guidelines

Pursuant to section 3b of the Federal Child Support Guidelines, the courts will order child support for an adult to be paid by each parent:

“an amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.”

The courts balance a child’s reasonable educational aspirations with the child’s own obligation and ability to pay or at least to contribute to their education. For example, through part time work over the academic year and full-time work over the summer. 

In Hamilton v. Popp, 2014 BCSC 506  the court departed from the table child support for an adult child attending university away from home pursuant to s. 3(2)(b) of the Federal Child Support Guideline. The table child support was greatly decreased for the months the child was away at university. And there was a marginal decrease for the months the child was expected back home over the summer.

In instances where a child resides away from home. For example in another city or in a dorm. The table child support amounts pursuant to the Child Support Advisory Guidelines have been found to be inappropriate by the courts. 

The table amounts of child support may also be different depending on whether the child returns to live with a parent during the summer months. In between the academic semesters.

Common Errors

Counsel often fail to properly take into account the factors that result in a departure from the Federal Child Support Guideline table amounts for an adult child.

High child support obligations result in a reduction of spousal support In scenarios where spousal support is being paid,. 

Errors include the oversight to seek a reduction in spousal support due to the high costs associated with child support or adjustments for child support over the summer months.

Child support for an adult child is very complicated and fact driven based on the circumstances of the child and the parties.

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