E. Post-Secondary Education or Training

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 51-64

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See note ⁸¹

The definition of "child of the marriage" in section 2(1) of the Divorce Act and the definition of "child" in section 35.1 of The Family Maintenance Act (Manitoba), pursuant to which parents may be ordered to support their adult children who are pursuing post-secondary education, do not contravene section 15 of the Canadian Charter of Rights and Freedoms. The Divorce Act does not purport to regulate the support obligations owed to the children of intact families and the proper exercise of plenary powers granted to the Parliament of Canada by section 91(26) of the Constitution is not subject to Charter scrutiny. Furthermore, section 36(1) of The Family Maintenance Act (Manitoba) imposes a general obligation on parents to support their adult children who are pursuing a reasonable program of post-secondary education. This obligation is not confined to separated parents; it also applies to the parents of children in intact families. Accordingly, it is not open to a parent to contend that the aforementioned statutory definitions impose a liability on a separated or divorced spouse that does not exist for children in intact families.⁸²It is not the serious pursuit of education itself that determines whether an adult child is unable to withdraw from the charge of his or her parents under the definition of "child of the marriage" in section 2(1) of the Divorce Act. Rather, the heart of the inquiry appears to be the extent of the financial independence/dependence of the child because of the pursuit of that education.⁸³

Post-secondary education and training programs that entitle an adult child to support can be extremely varied.⁸⁴A court has broad discretionary powers under sections 15.1 and 17 of the Divorce Act to determine whether child support should be ordered to facilitate post-secondary vocational⁸⁵or college education. Judicial opinion has been inconclusive on the question whether the pursuit of a sports career falls within the ambit of "other cause" in the definition of "child of the marriage" under s. 2(1) of the Divorce Act.⁸⁶When dealing with children engaged in sporting or cultural activities in the hope of making it a career, the court should have regard to the aptitude of the child and the probability, if any, of the child attaining that goal. If the child’s goal is realistic, there is no reason why courts should distinguish between a sporting or cultural career and a business career or a career in a learned profession. However, many children have sporting and cultural aspirations,

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but few will realize them. An adult child who is a gifted athlete pursuing legitimate career aspirations may, nevertheless, be found to be a "child of the marriage" within the meaning of section 2(1) of the Divorce Act. Pursuit of a sporting career may be akin to the pursuit of higher education and may constitute an acceptable "other cause" under the Divorce Act that entitles an adult child to support but the applicant must satisfy the court of the relationship between the adult child’s sporting aspirations and his or her achievement of economic independence.⁸⁷The relationship between sports training and an adult child’s career development and eventual economic independence is not self-evident and does not lend itself to the application of judicial notice.⁸⁸Support may be ordered in favour of a child over the age of majority who is unable to achieve financial self-sufficiency by reason of his or her attendance at school⁸⁹or college for the purpose of completing such education as is necessary to equip the child for life in the future.⁹⁰There is a need for careful inquiry and evidentiary underpinnings before issues of fact and law can be determined in the context of whether an adult child attending university is a "child of the marriage" entitled to support and, if so, in what amount.⁹¹

Although adult children are generally entitled to receive support while pursuing full-time post-secondary education, these types of cases are fact specific and require relevant evidence to be adduced.⁹²An adult child who is pursuing university studies may be ineligible for child support where she can meet her own expenses out of earned income and an educational trust established by her parents and she has no primary home base with either parent.⁹³Parents are responsible for assisting their adult children to pursue post-secondary education that will equip them for employment. There is a corresponding responsibility on the children to select an appropriate program to which they can apply their talents and abilities. The parental obligation to pay child support continues as long as progress is being made in preparing the children for economic self-sufficiency, although adult children are expected to contribute to their own expenses by means of their employment income.⁹⁴A child over the provincial age of majority who is working towards realistic educational and employment goals in seeking to complete high school with a view to seeking admission to university should not be denied child support where a prior failure to obtain academic credits resulted from physical and psychological difficulties. Such a child, who is maximizing opportunities that will foster improved health, should be encouraged in his endeavours and not penalized for the disabilities.⁹⁵An adult child with a learning disability may attend

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school or college to better himself and need not live at home in order to satisfy the statutory definition of "child of the marriage." Attendance on a full-time basis is not a prerequisite nor does limited earning capacity preclude such a status where the adult child can overcome the disability and it would be unfair for him or her to be confined to menial employment when other opportunities are available. To facilitate the adult child’s further education, a parent may be ordered to contribute a designated percentage of the child’s tuition fees in addition to paying the applicable table amount of basic child support.⁹⁶A child with health problems may be deemed to be in "full time" attendance at university for the purpose of applying section 31 of the Ontario Family Law Act, even though the child is not carrying the full course load of an able-bodied student.⁹⁷The definition of "child of the marriage" is not one of age but a question of dependence and the guiding principle is one of reasonableness.⁹⁸An adult child who has no definite educational plans⁹⁹and has made no effort to find employment is not a child of the marriage entitled to support.¹⁰⁰An adult child is not entitled to call on a parent to subsidize the cost of further university studies where the adult child has not availed himself of previous opportunities and has shown no aptitude for a proposed new field of study.¹⁰¹An adult child’s attendance at school, college or university is not in itself sufficient to bring the child within the statutory definition of "child of the marriage" under section 2(1) of the Divorce Act, unless such attendance renders the child unable to withdraw from the charge of the parents or to obtain the necessaries of life.¹⁰²Once a child attains the age of majority, the child is no longer presumptively entitled to support. The onus falls on the applicant to prove that an adult child who is pursuing post-secondary education is entitled to support as a "child of the marriage" within the meaning of section 2(1) of the Divorce Act.¹⁰³Relevant factors include: the age of the child, his or her academic achievements, the ability to profit from further education, inexperience, lack of job training, the possibility of securing employment having regard to the standard of education already achieved and the state of the labour market, and the capacity of the parents to bear

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the costs of a college education for a child who evinces an aptitude therefor.¹⁰⁴Additional factors include: whether the child is a full-time or part-time student, whether the child is eligible for student loans or other financial assistance, whether the child has reasonable career plans, the ability of the child to contribute to his or her own support through part-time employment, parental plans for the child’s education, particularly those made during cohabitation, and at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated his or her relationship with the parent from whom child support is sought.¹⁰⁵These non-exhaustive factors provide signposts but each case is unique and fact driven and the signposts are not exhaustive or weighted.¹⁰⁶It is not necessary to adduce evidence on all of the aforementioned factors in order to prove that a child falls within the statutory definition of a "child of the marriage" within the meaning of section 2(1) of the Divorce Act.¹⁰⁷A broad range of factors will be considered in determining whether an adult child is a "child of the marriage" and individual factors will vary in importance according to the circumstances of the particular case.¹⁰⁸Although relevant authorities have developed lengthy lists of factors relevant to determining whether an adult child remains a "child of the marriage" for support purposes,¹⁰⁹ such lists, helpful though they are, must not be used in place of the language of the statute nor should they be invoked to impose a burden on parents to call evidence about the obvious or on judges to address non-issues in their reasons for judgment. Judges are entitled to draw reasonable, common sense inferences from the proven facts and may take into account notorious facts such as, that post-secondary education is expensive, well paid part-time employment for full-time students is scarce, and the demands of a full-time course load limit

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the time available for part-time work.¹¹⁰Where the evidence of an adult child’s intention to return to university is inconclusive, a conditional order may provide a pragmatic...