Education expenses are one of the most commonly claimed and ordered s. 7 expenses. There are two types of education expenses that may be claimed as a s. 7 expense: extraordinary expenses for primary or secondary school education and expenses for post-secondary education. The important legal and practical considerations for post-secondary education expenses are set out below. For extraordinary expenses related to primary and secondary school education, please refer to the practice note: Primary and Secondary Education Expenses.
As with all s. 7 expenses, any request for contribution to the post-secondary education expenses for a child must be necessary in terms of the child's best interests and reasonable in light of the financial means of the parties. There is no requirement for post-secondary education expenses to be extraordinary.
Section 7 expenses for a child's post-secondary education are only payable if that child is entitled to ongoing child support. Reference must be made to either s. 31 of the Family Law Act, R.S.O. 1990, c. F.3 ("FLA"), or ss. 2 and 15.1 of the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3 (only where the child's parents were married and the case is heard by the Superior Court of Justice or Unified Family Court) to determine entitlement. The FLA was amended in December 2017 so that the effect of the wording for entitlement is the same as under the Divorce Act. Prior to that date, children over age 18 were only entitled to support under the FLA if they were in full-time school. Now, under both Acts, children are entitled to support under age 18 and over age 18 if the child is unable to support themselves because of illness, disability or other cause.
Entitlement to child support will terminate if the child is over 16 and has "withdrawn from parental control." There is a lot of case law on this point, particularly where the adult child is estranged from the child support payor. The threshold for withdrawal from parental control is very high and not reached in most cases. Please refer to the practice note: Child Support: Children over Age of Majority for a general discussion of entitlement under the Divorce Act for children over age 18.
Age of Child
There is no absolute cut-off for support payments, including s. 7 payments to cover post-secondary education costs, in terms of age or level of education. Until a child is 18, both the Divorce Act and the FLA require parents are required to pay child support unless the child has "withdrawn" from parental control or charge. After age 18, child support may continue, depending on the child's ability to become self-sufficient, the child's participation in an education program, the child's and parents' financial means. Generally speaking, parents will be expected to support their children after the age of 18 until the completion of at least one post-secondary program if they can afford to do so. The payment of child support during a second or third post-secondary program is now quite common and required by courts if the parents have the financial resources available to do so.
Part-Time vs. Full-Time Education Programs
The amendment to the FLA in December 2017 has put an end to the debate about whether a child is entitled to support if only attending school part-time. Clients whose orders were made under the old FLA provisions should review their Orders and see whether they need to be changed to allow for this new continued eligibility. Agreement precedents which used to require a child to be in full-time school for child support to continue past age 18 should be updated to reflect the new eligibility rules. Lawyers should consider advising past clients whose child support was limited to the full-time school requirement about this change so that old Agreements and Orders can be amended. If not, children whose parents received support under the old rules of the FLA .will be cut off from child support, while their peers whose parents were married and proceeding in the Superior Court of Justice (i.e., receiving support pursuant to the Divorce Act) continue to be entitled to support even while not enrolled in school full-time. There had been talk for years of a possible amendment to the FLA and an expansion of the Unified Family Court, the combination of which would have corrected the discrepancy. The amendment to the FLA in 2017 finally resolved the problem.
Temporary Breaks -- What Happens in a "Gap Year"?
Entitlement to child support may be temporarily suspended or may continue throughout the breaks between school years and the breaks which take place when children change between post-secondary programs or take time "off" to figure out next steps. A break in attending school does not automatically terminate entitlement to child support under either the FLA or the Divorce Act. Entitlement will likely continue unaffected if the child is already enrolled in the next program before the first program ends. If a child finishes one program, works for a while and then enrolls later in another, entitlement will likely be suspended for the period of time from the end of the first program to the date of enrollment in the second program. Courts engage in a nuanced analysis considering the child's diligence and timely planning in determining whether the entitlement revives on the date of enrollment or when studies actually resume. The same factors are considered later when deciding the appropriate method of determining the amount that the child should contribute to his or her own support during this period (see: Aubert v. Cipriani (supra) for a thorough review of the law in this situation). Be careful when relying on pre-December 2017 case law on this point. The changes to entitlement under the FLA should affect the analysis on this issue.
Cases decided under the Divorce Act will look at the actual financial reliance of the child on his or her parent during this gap and in particular at the amount the child does or could reasonably earn from employment during this time.
For Children under Age 18
When a child is under age 18, the Child Support Guidelines, O. Reg. 391/97 ("Guidelines"), require that the table amount of child support is paid, plus an additional amount as a contribution to the child's post-secondary education expenses. Many children start post-secondary programs prior to their 18th birthdays. For these children, a court can only order the table amount plus s. 7 expense calculation approach, unless the parents consent to another arrangement that adequately benefits the child. However, the case law does not distinguish between 17 year old children attending post-secondary education and those over age 18. Once a child starts a post-secondary program, the over age 18 approach is usually applied.
For Children Age 18 or over
Once the child is age 18 or over, the courts have discretion under s. 3(2) of the Guidelines to choose between two approaches:
What this means in practice is that after age 18, 1 of 2 methods of calculating a parent's contribution to post-secondary expenses may apply. As discussed below, the choice of calculation method usually depends on the child's living arrangements during the education program.
Which Calculation Method?
Two streams of approach for children over age 18 have emerged from the case law depending on whether the child lives at home or away from home during post-secondary studies:
Under the second approach, there will either be no table amount of support or a reduced table amount payable for certain months.
What Costs Are Included?
What exact costs are included in post-secondary expenses is not clearly defined in the Guidelines or in the case law. Two streams of approach have emerged from the case law.
If the child continues to reside at home while attending school, regular monthly support will usually continue at the full rate and the list of expenses shared as s. 7 expenses will be more limited. In that situation, s. 7 expenses may be limited to tuition and student fees, books and computer costs.
If the child is residing away from home at school, payment of the table amount of support is often suspended or reduced. The categories of expenses included as s. 7 expenses to be shared is more expansive and may include all items in the student's budget. In this latter situation, transportation costs and living expenses (including food, mobile telephone and other incidentals) are often included along with tuition, books and computer costs.
Some cases end up somewhere in between. Because judicial discretion is allowed when determining both s. 7 contributions and child support for children over age 18, these cases are decided on a case-by-case basis and vary with the unique facts of each student and their family.
Tuition fees and the cost of books are routinely included in all cases.
The following expenses are sometimes included:
Children are expected to make a reasonable financial contribution to their own post-secondary education costs. All the financial means of the child are considered and are relevant to the determination of the child's contribution. Those "means" include both income and capital resources, such as:
The extent that a child is expected to contribute to his or her education costs varies widely from case to case. The analysis is very fact specific, even within the same family.
Children are expected to earn some income while attending post-secondary education. Usually, children earn income during the 4-month summer school break. But, not all programs take such a break. Some programs require an unpaid internship. Courts and, as a result, parents and their lawyers must look to the actual income that either has been or reasonably can be earned by this child. Some children are able to earn income from part-time jobs while they are going to school. If the parents' financial means are limited, there may be a greater expectation on the child to have some part-time work, but only if it does not interfere with the child's ability to succeed in his or her education program. If income is earned, some, but not all, of the child's income will be applied to the child's s. 7 costs and deducted before the parents' shares are calculated.
Whether or not a child will be expected to take out student loans depends on the facts of the case, including the intentions of the parents prior to separation and the economic realities of the parties at the time the education expense is incurred. Student loans are routinely considered and will usually reduce the contribution required by a parent if those loans have in fact been received. The student loan should be considered a contribution by the child, since it will be the child who has to pay the loan following graduation. In some cases, where a parent has wrongly refused to contribute to a child's education costs, the parent may be required to make a full contribution to reimburse the child for the loan that otherwise would not have been incurred. And, sometimes a loan is received one year and reduces the parent's obligation, but is not required of the child the next year, or vice versa. As noted above, these cases are very fact-specific.
How the Child's Contribution Fits into the Calculation
Section 7(2) of the Guidelines states that the child's contribution is deducted first, then the remaining balance of the expense is shared between the parents. For a sample calculation, see precedent: Contribution Calculation (Section 7 Expenses, Post-Secondary Expenses) (Sample).
Sometimes courts allocate a percentage of the post-secondary costs to the child as well as to the parents on an ongoing basis. For example, the child and each of the parents might be responsible for one-third of the post-secondary education costs. In that case, it is important to be very careful in thinking about what costs come off the total before the balance is divided. Do scholarships and grants count as part of the child's contribution or do they come off before each proportionate share of the cost is calculated? Care should be taken when reading loan documents to note what part of the loan is a grant that will be forgiven and what portion must be repaid by the child.
Registered Education Savings Plans ("RESPs")
RESP amounts are credited against the cost of post-secondary education. Whether the RESP is credited against the amount payable as the child's contribution or is credited against either parent's share depends on when the RESP was accumulated and who made the contributions. RESPs that were accumulated prior to separation are deducted from the expenses before the support recipient and payor's portions are calculated, unless a court order or agreement specifies a different allocation. Similarly, RESPs that were contributed to by third parties are treated as gifts to the children and are deducted from the costs before the cost-sharing calculation determining the amount payable by the support recipient and payor. However, amounts contributed by either the support recipient or payor after separation will be credited to his or her share of the amount owing after the cost-sharing calculation has been made.
Note that the contribution to an RESP itself does not count as an eligible s. 7 expense. In most cases where a request for an order compelling a parent to contribute to an RESP is raised, it is dismissed because it is not an enumerated expense on the closed s. 7 list.
Lawyers and clients can resolve issues relating to the payment of post-secondary education expenses in an efficient manner by gathering and sharing the following information and documents:
Courts expect and require this evidence. A helpful tool for gathering and organizing this evidence is the precedent: Supporting Information and Evidence (Section 7 Expenses).
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