L. Expenses for Post-Secondary Education

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 281-285

Page 281

See note ³⁴²

Section 7(1)(e) of the Federal Child Support Guidelines empowers a court to provide for the payment of some or all of post-secondary education expenses.

An application for expenses for post-secondary education under section 7(1)(e) of the Federal Child Support Guidelines may be deemed premature, where the child has a history of changing his or her plans and has not been accepted for admission to university or community college.³⁴³Although section 7(1)(e) of the Federal Child Support Guidelines and of the Ontario Child Support Guidelines may provide an advantage with respect to the post-secondary education of children of divorced or separated parents, which is not shared by children of an intact marriage, there is no contravention of sections 7 and 15 of the Canadian Charter of Rights and Freedoms.³⁴⁴

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Post-secondary education expenses do not have to be "extraordinary" in order to satisfy section 7(1)(e) of the Federal Child Support Guidelines, but they must satisfy the tests of necessity and reasonableness defined in section 7(1).³⁴⁵The costs of post-secondary education or training are placed fairly high on the scale of necessity in relation to the child’s best interests. Whether the expenses are also reasonable must be assessed having regard to the means of the parties and of the child and to the family’s pre-separation spending pattern.³⁴⁶Expenses for post-secondary education may include tuition, books and other supplies, and necessary transportation costs.³⁴⁷Where the table amount of basic child support is deemed inappropriate because the adult child is living away from home while attending university, the post-secondary education expenses under section 7 of the Guidelines will include tuition and institutional expenses, room and board or equivalent expenses, and books, travel and miscellaneous expenses reasonably attributable to the pursuit of that education.³⁴⁸The court must avoid the double counting of such costs as accommodation and food when an order for the table amount of child support is coupled with an order for a contribution to the child’s expenses while attending an out-of-town university.³⁴⁹Expenses for post-secondary education under section 7(1)(e) of the Federal Child Support Guidelines are not confined to children over the provincial age of majority in respect of whom section 3(2)(b) of the Guidelines might be invoked.³⁵⁰However, section 7(1)(e) may be invoked with respect to children over the age of majority for whom child support has been fixed in accordance with the applicable provincial or territorial table pursuant to section 3(2)(a) of the Federal Child Support Guidelines.

There are a number of things that the court is required to consider in relation to post-secondary education expenses. The court must determine whether the expenses are reasonable having regard to the means of the spouses and child and the family’s spending pattern before separation. It is also necessary to determine whether an expense has arisen solely as a result of post-secondary education or whether some portion is already factored into the basic amount provided by the applicable provincial or territorial table. Contributions of the child made possible from his or her earnings or the availability of student loans are to be deducted from the expenses. The court must also take into account subsidies, benefits, and income tax deductions or credits relating to the expenses. Where the only evidence is the applicant’s notional estimate of what it may cost for tuition, books and living expenses, the court may conclude that there is insufficient information available to enable the court to fashion an order in the absence of further evidence.³⁵¹A claim for post-secondary education expenses may be adjourned or dismissed without prejudice to the right to re-apply where insufficient evidence is provided of the child’s ability or inability to contribute to

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the expenses.³⁵²An adult child is expected to contribute to his or her college expenses to the extent that is reasonable. The applicant or the adult child must furnish accurate and meaningful information so that the court can assess what the child’s contribution should be. A failure to provide such information entitles the court to draw an adverse inference for the purpose of determining the child’s contribution.³⁵³An assessment may be declined as premature until the child is accepted at university³⁵⁴or until such time as post-secondary education costs have been incurred.³⁵⁵In calculating the amount of child support to be paid to enable a child to pursue university studies, the court should take account of the child’s capacity to contribute to the cost out of his or her own income, and bursaries, scholarships or student loans.³⁵⁶An adult child is expected to contribute towards the cost of post-secondary education or training by maximizing his or her income, whether by scholarships, bursaries, loans or summer employment,³⁵⁷but his or her availability for part-time employment while at college is to be determined in light of the academic demands for successful completion of the program.³⁵⁸

The opportunity to pursue post-secondary education is a privilege, not a right, and an adult child may be required to take advantage of student loans. The appropriate level of the child’s loan obligation should be determined by reference to the child’s means and capabilities, the financial capacity of the parents and a fair balance between the child and the parents.³⁵⁹

There is no hard-and-fast rule that student loans ought to be required only when the means of the child combined with those of the parents leaves a shortfall.³⁶⁰An adult child who is pursuing university studies should not be expected to incur substantial debt, if the child is contributing to his or her subsistence in a significant way and the parent against whom the relief is claimed is capable of providing the necessary child support. Under these circumstances, the amount of child support may be fixed so as to enable the child to live on a zero-deficit basis.³⁶¹Expenses under section 7(1)(e) of the Guidelines may be denied where a child who attends university can totally finance his or her own studies through...