Do I really have to pay maintenance for my child after she turns 19?
Is child support payable for a child who is over the age of 19? If so, how much? These questions are often asked by parents who have an obligation to pay child support. The answers to these questions are complex. And, as in many areas of family law, there is no real certainty.
One of the basic principles behind child support obligations is that child support is the right of the child. The general rule is that the parent with whom a child is residing is entitled to make a claim for child support against the other parent. A “parent” can include both a natural parent of a child and a step parent of a child.
The Divorce Act and the Family Relations Act are the two pieces of legislation which define how long child support may be payable for children who are over the age of 19. Both Acts have similar provisions with respect to how long support may be payable after a child turns 19. The provisions can be summarized as follows: child support may be payable for a child over the age of 19 where that child remains under the charge of a parent and is unable, by reason of illness, disability or other cause, to withdraw from that parent’s charge or to obtain the necessaries of life.
A child suffering from a long term illness or who is disabled may be unable to support himself/herself and may have to remain dependent upon and living with a parent well past the age of 19. In such circumstances, the parent with the obligation to pay child support will likely continue to have that obligation
The more difficult circumstance when it comes to children over the age of 19 involves children who decide to attend post secondary schooling. The question becomes, to what extent the obligation to pay child support continues. The simple answer is that the obligation to pay child support often does continue after a child turns 19 and is attending post secondary schooling. The reason for this continuing obligation is that children over 19 and attending post secondary schooling are seen as being unable to withdraw from the charge of the parent with whom they have been residing.
The Federal Child Support Guidelines (the “Guidelines”) provide the framework for determining how much child support should be paid by a parent on a monthly basis for a child over the age of 19. The Guidelines provide that the child support payable may be the amount provided for by the Tables which are set out in the Guidelines and which specify the amount of child maintenance payable by a parent. In the alternative, the amount payable may be determined by a Court as an amount different from the Table, after the condition, means, needs and other circumstances of the child and the financial ability of each parent to contribute to the support of the child is taken into account.
When it comes to the meaning of condition, means, needs and other circumstances of the child and the financial ability of each parent to contribute to the support of the child, a court will look at the child’s actual post secondary expenses (tuition, books, room, board, etc.), and will also look at the ability of the child to contribute to those expenses. Typically, a child over the age of 19 is expected to contribute to his/her post-secondary expenses and those contributions may include taking into account employment earnings, scholarships, bursaries, student loans. A Court will also take into account the ability of both parents to contribute to those expenses and will also consider the expectations of parents during the time when they were still living together, i.e. was there an expectation that the child was going to attend post secondary schooling, were monies saved to assist in covering these expenses.
The case of Farden v. Farden 48 R.F.L.(3d) 60 (B.C.S.C.) at pages 64 to 65 outlines the following factors which a court will consider in deciding whether or not a child who is attending a post secondary education may still be entitled to child support:
“(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 or not the child has applied for or is eligible for student loans or other financial assistance;
(3) 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;
(4) the ability of the child to contribute to his own support through part-time employment;
(5) the age of the child;
(6) the child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;
(7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;
(8) 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.”
Just because a child over 19 years of age is attending a post secondary institution will not necessarily result in a child support obligation continuing. The law in this area is complex. The obligation to continue paying child support after a child turns 19 will be dependent upon the facts of each case. A lawyer at Mair Jensen Blair LLP can review the facts in such cases and provide advice on these issues.