The Legislation Can Be Vague Regarding Adult Children
When going through a separation or divorce one of the biggest challenges is the process of determining child support. This is especially true when dealing with children over 18. While there are Federal Support Guidelines to help determine your legal obligations for paying child support, the legislation can be ambiguous. Our skilled team of lawyers have provided a breakdown of child support obligations for adult children.
Child of the Marriage: Who Qualifies?
Parents are free to enter into an agreement to specify what their support obligations are for adult children. The legislation deals with adult children, and makes it clear that child support does not necessarily end when a child is 18. The Divorce Act defines a child as either being under 18, or over 18, but unable to withdraw from a parent’s charge. The wording of the legislation is vague and allows for the court to interpret whether or not a child is unable to withdraw from his/her parent’s charge on a case by case basis. The case law states that a child that is financially dependent for reasons of mental or physical incapacity can qualify as a child after they attain the age of 18. Additionally, a child attending post-secondary education at an accredited institution on a full-time basis and achieving passing grades will also qualify as a child of the marriage over the age of 18. That is not to say that those are the only children that will qualify, but other circumstances are less clear.
The Federal Child Support Guidelines
The Federal Child Support Guidelines indicate that post-secondary educational expenses are shareable proportionately based on each parent’s income. The guidelines take into account the financial circumstances of the parties, the availability of other sources of funding such as student loans, scholarships, Registered Educational Savings Funds and the Child’s ability to contribute to his or her own education. Additionally, for the purpose of determining the parties’ share of any contribution they make to the children’s post-secondary expenses, the amount of the expense will be calculated by taking into account any tax benefit or subsidy for, or associated with, the expense.
How long a child can remain in school and be funded by parents is also open to interpretation. Many parents choose to enter into an agreement that limits their potential support obligation. For example, parents can agree that post-secondary educational expenses will only be paid through a child’s first degree, diploma or certificate or until the child attains the age of 23. Without an agreement, the court has the ability to determine whether a child that is attending a second or third degree still qualifies as a child of the marriage.
What If The Adult Child Attends A Distant School?
There are cases where base child support is still payable for a child that is attending school out of town. However, it’s more common for that child’s room and board to become a shareable Section 7 expense along with his/her tuition, books and travel to and from university or college. During the time the child is away at school, base child support is suspended but for the spring and summer months when the child returns home, base child support often resumes, although that is not always the case.
The Role Of RESPs In Child Support Of Adult Children
When parents have RESPs to fund children’s education, the parties will utilize any funds available to them in the RESP that accumulated during their relationship prior to sharing the cost of the children’s post-secondary education costs. Any amounts not covered by the RESP would then be shared by the parties proportionately. Usually, upon a relationship ending, parties will choose to open their own RESP accounts for the children and each parent would be entitled to use the funds from the RESP account they opened in order to pay for their proportionate share. However, sometimes parties agree to each contribute proportionate or equal amounts to the existing RESP after their separation.
If you are going through a divorce and need help determining child support, connect with us to set up an initial consultation.