Appeal by father from orders that he pay support for his three adult children to help cover the costs of their university education. The three children of the marriage were born in March 1981 (Kristy), March 1982 (Stacey), and in August 1985 (Tara). The parties were divorced in June 2001. The consent judgment provided that the father was to pay to the mother table support under the Guidelines for Stacey and Tara of $500 per month backdated to October 2000. In addition, the father agreed to pay as "special or extraordinary expenses" a set sum as a contribution to Stacey's university expenses and a proportionate share of the annual tuition and textbook expenses for "each of the children of the marriage who attend university or college." In November 2002, the father brought a motion for a retroactive variation of child support and cancellation of any arrears due to the fact that Stacey was working full-time and was no longer in university. In April 2003, the mother applied to vary the consent judgment to provide table support under the Guidelines for Kristy, together with a contribution towards her tuition and textbook expenses, as well as continued support for Stacey. It was subsequently acknowledged that Stacey was no longer entitled to child support effective January 2003. In December, 2003, the father was ordered to pay support for all three children for the months of September and October 2002, and for Stacey and Tara only for the months of November and December 2002. The motions court judge concluded that Kristy ceased to be a child of the marriage when she moved out of the mother's residence in November 2002. After further adjustments for the year 2003, it was ordered that no further child support would be payable by the father after August 2003 unless the child returned to post-secondary education. The father was ordered to pay a proportionate share of the post-secondary expenses for Stacey and some of the tuition for Kristy. In the event that child support was sought, the mother was to provide notice to the father in August or December, failing which there was "no obligation to make support payments." The father appealed the order of December 2003 and the mother cross-appealed with respect to the finding that Kristy was not a child of the marriage from November 2002 to June 2003 because she had moved out of the home. In 2004 the mother brought a motion to vary the child support order to obtain child support for the youngest daughter, Tara. Tara was an adult. The mother also sought an order to require the father to contribute proportionately to Tara's tuition and textbook expenses commencing September 2004. The motion by the mother was allowed. The motions judge found that Tara was a child of the marriage when she returned to university. She was not self-sufficient and was entitled to child support and a proportionate contribution to her university expenses.
- When is an adult a "child of the marriage" within the meaning of the Divorce Act when he/she is pursuing educational opportunities, and when does the payor's obligation to contribute terminate?
- To what extent are adult children of a marriage required to contribute to their education costs?
Appeal dismissed, cross-appeal allowed.
Chief Justice Scott, writing for a unanimous court, states that the idea of an adult child as a "child of the marriage" is entirely a creation of caselaw rather than finding its basis in the s. 2 definition. In cases such as this, there is a three part test:
- Is the person for whom support is sought a "child of the marriage"?
- A child of the marriage is one who is still in the "charge" of a parent, i.e. one who is still financially supported by the parent. Where they live may or may not be material.
- Is the table amount in the Guidelines "inappropriate"? If not, then the Guidelines amount should be awarded.
- If the answer to Step 2 is "yes," what level of support is "appropriate"?
- The court should determine how much the adult child needs to maintain a reasonable lifestyle, and how much the child can reasonably contribute from his or her own resources. If there is a shortfall against the Guidelines amount, the shortfall can be apportioned among the spouses according to income. Post-secondary education expenses can also be included in this calculation.
General discussion of s. 3(2) of the Guidelines and the definition of "child of the marriage".