The Alberta Court of Appeal recently refused to order a father to pay for his adult daughter’s college education, after the mother filed a claim for child support and expenses.
The daughter graduated from high school in 2013, soon after the parents had separated. She enrolled in post-secondary studies at Mount Royal University in January 2014, but withdrew from the program two years later without completing a course of studies. In August 2016 she moved in with her boyfriend for a period of just over one year. In October 2017, when she was 22 years old, the daughter moved back home with her mother and commenced another educational program at a career college. That program of studies was to last about one year, until October 2018.
The daughter made arrangements to work on a part-time basis during her studies at the career college. She applied for and obtained a student loan as well as a grant for her studies. However, when the mother learned about her daughter’s student loan, she took steps to cancel it and instead paid for her daughter’s tuition herself.
The father, who had financially assisted his daughter with her previous post-secondary schooling per a court order, refused to contribute financially to the career college program. He was of the view that his daughter should fund the studies herself.
The mother applied to the court for an order that the father pay support under s. 3 of the Alberta Child Support Guidelines (the “Guidelines”) and contribute to the daughter’s new program of studies by way of s. 7 Guideline expenses.
Section 3(2) of the Guidelines allows for support to be ordered for a child over the age of majority and s. 7 of the Guidelines covers special or extraordinary child support expenses.
The chambers judge dismissed the mother’s application because, in her view, the daughter was no longer a “child of the marriage” under s. 2(1) of the Divorce Act.
Section 2(1) of the Divorce Act defines a “child of the marriage” as:
“child of the marriage means a child of two spouses or former spouses who, at the material time,
(a) is under the age of majority and who has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.”
The chambers judge came to this decision with reference to the factors set out in previous case law indicating that a determination as to whether a child attending a post-secondary institution should be considered a child of the marriage “requires examination of all of the circumstances”.
In her consideration, the chambers judge placed emphasis on the daughter’s initiative in obtaining the student loan and the grant, and in arranging for employment income during her studies. The chambers judge was satisfied, based on the evidence before her, that the daughter would have sufficient funds to pay her way through her year of studies. Her view was that the daughter was not financially dependent on her parents. The chambers judge also considered that the daughter had lived independently for a year before enrolling in the career college.
Issues on Appeal
The mother appealed and argued that the chambers judge erred by finding that the daughter was not dependent on her parents and by determining that the daughter was not a child of the marriage pursuant to the Divorce Act. She contended that where the parents have higher incomes, as in this case, there was less of a requirement that the child look to student loans to assist in financing post-secondary education. The mother also argued that the chambers judge placed too much emphasis on the year the daughter lived with her boyfriend after failing to complete her university course of studies.
The Appeal Decision
The court of appeal agreed with the mother’s argument that dependent children of parents who can afford it are not necessarily required to finance their education with student loans.
However, the court found that the chambers judge’s decision that the daughter was not a dependent child of marriage should not be overturned without a finding that there had been an error in principle, a misapprehension of evidence or an incorrect award. The court stated that child support decisions should be given considerable deference because of their fact-based and discretionary nature.
In the end, the court found an inadequate evidentiary record to support a finding that the daughter was financially dependent on her parents. As a result, the court found no reviewable error in the reasons of the chambers judge.
The appeal was dismissed.
Since child support issues have the potential to become complicated, it is essential to obtain knowledgeable and proactive legal advice as early in the separation process as possible.
Mark Feigenbaum brings years of litigation, corporate law, tax law, estate law, and accounting experience to family law disputes. Mark can help you protect your children and your assets, including your business if you are a professional or business owner and guide you through the process of starting your new life. Mark’s goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible.
If you own a business or have a high-net-worth, and are going through a separation or divorce, it is crucial to obtain guidance from a family lawyer who understands your specific needs. Mark Feigenbaum can ensure that you meet your child support obligations, while maintaining financial stability, and protecting your assets. Contact Mark online or call him at (416) 777-8433 or toll-free at (877) 275-4792 to book a consultation.