If you are going through a separation or divorce, you will likely hear the term “Section 7 expenses” or “extraordinary expenses” as a specific category of child support. What expenses are you liable to pay, if any, for your adult children if they are attending post-secondary education? Do you have an obligation to pay for your child’s university expenses even if it was clear during marriage that you would not be contributing? What if your son/daughter has moved away to attend university and lives with roommates or a girlfriend/boyfriend? Are you still responsible to pay for your child’s university if they have taken a “gap year”? Does your child have any duty to contribute through a summer job or student loans?
The law relating to university expenses post-separation or divorce is complex and highly discretionary. First, the applicant must prove that the child is still a dependent within the definition provided for in the applicable legislation.
If you were married, then the Divorce Act and corresponding Federal Child Support Guidelines apply to you. Regarding your adult child, Section 2(1) of the Divorce Act defines an adult child as continuing to be a “child of the marriage” even if they are over the age of majority but are “unable, by reason of illness, disability or other cause, to withdraw” from their parent’s charge. The “other cause” referred to can include attendance in full-time post-secondary studies.
The Federal Child Support Guidelines, s. 3(2) provides that:
Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is (a) the amount determined by applying these 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.
If you were in a common-law relationship or were not married to the other parent, then the Family Law Act and the Alberta Child Support Guidelines apply to you. These Guidelines specify that:
(2) Unless otherwise provided under these Guidelines, the amount of a child support order for a child 18 years of age or older who is under his or her parents’ charge and is unable by reason of (a) illness, (b) disability, (c) being a full-time student as determined in accordance with the prescribed guidelines, or (d) other cause to withdraw from his or her parents’ charge or to obtain the necessaries of life is to be determined in accordance with subsection (2.1). (2.1) The amount of a child support order for a child referred to in subsection (2) is (a) the amount determined by applying these Guidelines as if the child to whom the order relates were under the age of majority, or (b) if the court considers that approach to be inappropriate, the amount that the court considers 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.
What does all this mean to you? Because this area of law is highly fact-driven, cases have had different outcomes depending on each family’s unique situation. It is strongly recommended that you consult a lawyer in order to determine your financial obligations to your adult children. However, there are some key factors which will guide a Court in determining whether you are responsible for paying for your child’s university expenses post-separation or divorce. Typically, the factors that an Alberta judge will consider include the following:
- The income of the mother and father;
- The living arrangements of the student;
- The means, needs and circumstances of the parents;
- Whether the adult child has voluntarily cut off a relationship with one of the parents;
- The student’s grades and/or the planned educational path;
- The student’s own contribution (whether through summer employment, bursaries, or student loans); and
- The age of the adult child.
In a recent decision, DGS v HAS, 2019 ABQB 887, the court held that even though a 22-year-old university student took a gap year the year before, the fact that she had subsequently enrolled in full-time studies, brought her within the definition of “child of the marriage”, and granted child support. The Court reviewed recent cases regarding university expenses and provided a helpful review of the law in this area.
If you are questioning what your responsibilities are towards your adult children, it is important to seek legal advice so you can plan accordingly for you and your child’s future.