F. Children over Age of Majority: Section 3(2) of Guidelines

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 64-78

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Section 3(2) of the Federal Child Support Guidelines provides that, unless otherwise provided under the Guidelines, where a child who is entitled to support is the age of majority or over, the amount of the child support order is (a) the amount determined by applying the Guidelines as if the child were under the age of majority; or (b) if the court considers that approach to be inappropriate, the 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.²⁰²

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The court cannot deviate from section 3(1) of the Guidelines, whereby support for a child under the age of majority is presumptively the table amount plus any add-ons under section 7, simply because a child is approaching the age of majority. Where a child is enrolled in a university program while still under the age of majority but soon will attain that age, the presumptive rule whereby child support is fixed at the applicable table amount plus any allowable section 7 expenses for post-secondary education must be applied while the child is still under the age of majority;²⁰³thereafter, section 3(2) of the Guidelines empowers the court to deviate from the presumptive rule where its application is deemed inappropriate. ²⁰⁴ A court cannot deviate from the presumptive rule respecting the table amount of child support and allowable section 7 expenses under section 3(1) of the Guidelines where the child is under the provincial age of majority, unless the attendant circumstances trigger the discretionary jurisdiction of the court under the Guidelines with respect to split or shared custody, undue hardship, or, if the paying parent’s annual income exceeds $150,000. The court cannot refuse to apply the presumptive rule by invoking section 3(2)(b) of the Guidelines which applies to adult children, even if the parents are agreeable, because the child will be pursuing his post-secondary education away from home.²⁰⁵When applying the presumptive rule with respect to a child under the age of majority who is attending an out-of-town university, the order for the payment of section 7 expenses pertaining to the child’s post-secondary education must avoid double recovery for accommodation and food expenses that are already included in the table amount of child support ordered.²⁰⁶Where a child in attendance at a university away from home is under the provincial age of majority but will soon attain the age of majority, the court may grant an order pursuant to section 3(1) of the Federal Child Support Guidelines until the child attains the provincial age of majority, and an order under section 3(2) after he attains the provincial age of majority. When an adult child is attending university away from home, courts do not normally order the table amount of support; instead, they resort to the means and needs approach applicable to adult children under section 3(2)(b) of the Federal Child Support Guidelines.²⁰⁷What is appropriate or inappropriate under section 3(2) of the Federal Child Support Guidelines must be determined on a case-by-case basis;²⁰⁸there are no hard-and-fast rules.²⁰⁹A spouse who seeks to exclude the application of section 3(2)(a) of the Guidelines to a child of the age of majority or over has the onus of proving that such application would be inappropriate.²¹⁰The fact that an adult child has some employment income does not it-

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self signify that the table amount is inappropriate²¹¹but to make a determination the court must examine the child’s means and needs as well as the financial circumstances of the parents.²¹²This onus is not discharged simply because an adult child earns a modest income and receives benefits from a registered educational scholarship plan, although these factors may be appropriate for consideration when dealing with the child’s post-secondary education expenses under section 7(e) of the Federal Child Support Guidelines.²¹³The fact that the adult children enjoy a higher lifestyle than that of the payor does not necessarily justify judicial deviation from the presumptive rule.²¹⁴The initial approach under section 3(2) of the Guidelines involves a determination of the applicable table amount, together with such amounts for special or extraordinary expenses as may be justified under section 7 of the Guidelines. Only when the court considers that approach inappropriate can the court invoke the broader discretionary jurisdiction that is exercisable under section 3(2) of the Guidelines, 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.²¹⁵The words "inappropriate approach" in section 3(2)(b) of the Guidelines may be interpreted as signifying an unreasonable amount of child support. If section 3(2)(b) of the Guidelines is triggered, the court must undertake the budget driven approach that was in vogue before implementation of the Guidelines.²¹⁶The judicial flexibility conferred by section 3(2) of the Guidelines is justified by the generally different situations of adult children and of children under the age of majority. The language of section 3(2)(b) of the Guidelines does not inform courts how they are to determine whether the table amount of support is inappropriate, although such a conclusion has been perceived as the exception rather than the rule.²¹⁷The amount of child support ordered pursuant to section 3(2) may be higher or lower than the table amount, depending upon the circumstances,²¹⁸such as the additional costs attributable to an adult child’s reasonable pursuit of post-secondary education at an out-of-town university, or the ability of the child to contribute to his or her own living and university expenses.²¹⁹There is insufficient judicial consistency of approach to lay down any hard-and-fast rules with respect to adult children who are pursuing university studies while living at home or away from home. Helpful

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guidance has been furnished, however, by the following analysis of Martinson J., of the Supreme Court of British Columbia, in Wesemann v. Wesemann.²²⁰The law relating to adult children involves a four-step process. The court must first determine whether an adult child falls within the definition of a "child of the marriage" under section 2(1) of the Divorce Act. Second, the court must determine whether the approach of applying the Guidelines as if the child were under the age of majority is challenged. If not, the court shall apply the same criteria as those applicable to children under the age of majority. Third, if this approach is challenged, the court must determine whether the challenger has satisfied the burden of proving that it is inappropriate. If not, the usual guidelines apply. Fourth, if the usual guidelines approach is proven to be inappropriate, the court must decide what amount is appropriate, having regard to 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. Where it is appropriate to apply the same approach under the Guidelines to adult children as that applied to children under the age of provincial majority, this can result in an order for the applicable table amount or an order for the applicable table amount and an additional amount under section 7 of the Guidelines for the expenses of post-secondary education. Martinson J. suggests a third alternative whereby an order could be made under section 7 of the Guidelines without any table amount, but this suggestion negates the significance of the word "and" which links paragraphs (a) and (b) in section 3(1) of the Guidelines. This third alternative would be available, however, by recourse to section 3(2)(b) of the Guidelines, in circumstances where the concurrent allocation of the applicable table amount is inappropriate. Section 3(2) of the Guidelines does not inform a court how to determine whether or not the usual guidelines approach is appropriate. The usual guidelines approach is based on certain factors that normally apply to children under the age of majority, namely, they reside with one or both parents, are not earning an income, and are financially dependent on their parents. The closer the circumstances of an adult child are to those upon which the usual guidelines approach is based, the less likely it is that the usual guidelines approach will be found inappropriate. The opposite is also true. Children over the age of majority may reside away from home and/or earn a significant income. In these circumstances, the adult child’s expenses will be quite different from those of a typical child under the age of majority. In exercising the discretion to move away from the usual approach under the Guidelines, a court will find it helpful to consider (1) the reasonable needs of the child; (2) the ability and opportunity of the child to contribute to those needs; and (3) the ability of the parents to contribute to those needs. The reasonable needs of the child has two aspects, namely (1) the child’s needs for accommodation, food, clothing, and miscellaneous expenses, and (2) the

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child’s actual post-secondary expenses. Children have an obligation to make a reasonable contribution to their own post-secondary education or training. This does not signify that all of a child’s income should be applied to the costs of the child’s further education. A child should be entitled to some personal benefit from the fruits of his or her labours.²²¹It is not appropriate to require a child to pursue part-time employment during the academic year where that would interfere with the child’s academic progress,²²² nor should the availability of student loans automatically require the child to obtain such loans. Student loans are not to be equated with...