Post-secondary expenses are determined by the court primarily on a discretionary basis having regard to numerous factors. The gist is that the first post-secondary program a child enters into, as well as the associated expenses, will usually be covered by both parents in proportion to their incomes, after deducting any amount the child can cover themselves. However, as the legislation clearly outlines below, and with the aid of supporting case law, there are a number of considerations that can make this analysis a lot more complicated. The guiding legislation on this topic is found in the Child Support Guidelines and is as follows:
Presumptive rule
3. (2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child 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 parent or spouse to contribute to the support of the child.
In these cases, then, the presumption is that child support will be treated the same as a child under the age of majority, if the child is attending post-secondary school. This would insinuate that the table amount of support should continue. However, the court has stated that the table amount of child support is inappropriate when the child is away at school and no longer living at home. If this is the case, then the expenses for the child are determined wholly through section 3(2)(b) and section 7 (i.e. a discretionary case-by-case analysis). Coghill v Coghill, [2006] WDFL 2892, does note that the table amount could apply during the summer months if the child returns home.
So, what should a court consider when deciding who will pay what for post-secondary education? In addition to section 3(2)(b), and the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child, post-secondary expenses are listed in section 7 of the Guidelines:
Special or extraordinary expenses
7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:
…
(e) expenses for post-secondary education; and
…
Sharing of expense
(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. O. Reg. 391/97, s. 7 (2).
Subsidies, tax deductions, etc.
(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. O. Reg. 159/07, s. 2.
As the court noted in 2006, in the Ontario Court of Appeal case Lewi v Lewi, “…pursuant to s. 7(1), the task of the court is to determine the amount of support to be ordered based on a consideration of three things: (1) the reasonableness of the expense in relation to (2) the means of the parents and the child and (3) the family's spending pattern prior to separation.” Each one of these factors can carry with it a breadth of analysis.
In the recent case of M v T, 2021 ONSC 7622, the court summarized the important principles pulled from Lewi v Lewi:
• The law presumes that the "standard Guideline approach" of s. 3(2)(a) will be used unless the court considers that approach to be inappropriate (para. 129);
• It is open to the court to find that the "standard Guideline approach" of s. 3(2)(a) may be appropriate where the child remains living at home but not if the child is away at school for 8 months of the year (para. 138);
As iterated, this means that the standard table amount of child support, determined by income and the parenting arrangement, may continue to apply at the court’s discretion, if the child is completing their post-secondary education while living at home. However, the court suggests that this cannot be the case if the child is living away from home.
This is contrasted with Pothakos v Denson, 2014 ONSC 5372, where the court stated that it was up to the judge to determine whether the table amounts will continue to apply, and it is up to the moving party to show why this would be inappropriate. In referencing Lewi, the court stated: [t]he Court held that it was open to the judge to order unreduced table support, apply that table support to the living expenses of the child at university as much as possible, and resort to s. 7 for the added costs of post-secondary education. However, the result in Pothakos seems to be unpopular. The court continued in M v T:
• Both s. 7 and s. 3(2)(b) require the court to consider whether a child of majority age is able to make a contribution to his or her post-secondary education expenses (para. 141);
• Section 3(2)(b) requires the court to have regard to the "means" of the child. Both capital and income are encompassed by the term "means". The section requires the court to consider the child's means in the context of the financial ability of each of the parents to contribute to the support of the child (para. 142).
• While s. 7 refers in its criteria to the contribution of the child, if any, this does not indicate a greater expectation for the child's contribution under s. 7 compared to s. 3(2)(b). The court has the discretion under both provisions to decide the amount the child should be expected to contribute (para. 159);
• As a general rule, the amount of child support that a parent is ordered to pay should be determined on the expectation that a child with means will contribute something from those means towards his or her post-secondary school education. The extent of the contribution expected depends on the circumstances of the case. There is no standard formula under either s. 7 or s. 3(2)(b);
The amount that a child should be expected to contribute to their education is determined entirely on a case-by-case basis, having regard to all the unique and relevant facts of a particular case, subject to the discretion of the judge. This is completely logical, given that the means of any given child can vary significantly. Some students may have been awarded scholarships, had better employment opportunities during the summer months, received more loans, etc. While some students may have means, their parents may have an abundance of resources or lack thereof, which can further complicate the analysis. The court continues:
• Proper concerns in the analysis under s. 7 and 3(2)(b) are the effect of the order on the parents given their financial means; whether the expenses are of a type that both parents would have promoted had the family remained intact; and the preservation of the existing proportion of net disposable income between the parents (para. 149). The means of the children and the means of the parents are to be considered together and balanced (para. 150);
• The focus of s. 3(2)(b) is, "[n]ot on the payer's income but rather on the amount of support and its appropriateness having regard to the needs and condition of the children and the financial ability of the spouses to contribute to the children's support" (para. 155);
• In fashioning an order applying the broad criteria in s. 3(2)(b), the court may well draw upon the principles of the Guidelines and its experience in applying them. For example, it would be entirely appropriate for the court, under s. 3(2)(b), to consider that the parents should share post-secondary expenses in proportion to their incomes after deducting the contribution, if any, of the child. The evidence upon which the court might conclude it was just and appropriate that the parents should share the expenses in some other proportion would be the same under both provisions (para. 157).
Further, it is important to consider the proposed budget for the child's expenses. Apart from considering the cost of items in the budget, it is important for the court to consider the appropriateness of the expense, having regard to the parties' present and past circumstances: Jahn–Cartwright v. Cartwright, 2010 ONSC 923 at para. 70.
According to these paragraphs, there are numerous considerations a court must balance when deciding how much the child and the separated parents ought to pay for post-secondary expenses. These considerations include the ability of the parents to pay; the views of the parents when the relationship was intact; the means of the child to contribute; the needs and condition of the child; and the child’s budget proposal, while also considering whether that proposal is reasonable in context.
In applying these principles to the specific case, the court made several findings. The court started by analyzing the proposed budget. For instance, it was found that the budget set out for the child’s car was unreasonable because the child in question was able to walk to school from their apartment. Further, the judge did not allow the expense for four months’ rent during the summer months, having found that the child should sublet their apartment when school was not in session. The court concluded that for one year in question, the child's expenses were reasonably set at just over $22,000.00.
The child also had relatively significant means, including summer employment income over $17,000.00 one year, and a $2,100.00 OSAP grant. While the court found the father to have a healthy financial position to contribute to the child’s educational expenses, including a $26,000.00 RESP, the mother was not in the same position. Interestingly, the court considered that the mother had to make necessary renovations to her home to make it habitable and the court also considered the fact that she had another minor child to support. While these alone may not be sufficient to warrant a reduction in a parent’s obligation, the court found that because the child had significant means to provide for their own education that the mother’s obligation could be reduced. Finally, the court found there was little evidence regarding what expectations, if any, there were regarding the payment of post-secondary education whilst the family was intact. For said year in question, the child was ordered to pay $10,000.00 of their own money for the year in question; the mother's obligation was set at just under $3,000.00; and the father was ordered to pay just under $5,000.00. This is but one case where an analysis was conducted in the discretion of the judge.
Obvious takeaways? Child support during post-secondary studies will partially depend on where the child is living. If the child is living at home during their studies, the standard table amounts will likely apply in addition to section 7 expenses. If the child is away at school, and not living at home, the table amounts will likely be considered inappropriate during the time the child is away. Thus, the court will then take a detailed analysis of the child’s expenses and assess the reasonability of said expenses. The child may or may not be required to contribute to their own expenses, dependent entirely upon the situation of the child in question as well as the expectations created while the familial relationship was intact. While the starting presumption is that the parents will then pay the “leftover” expenses proportionate to their respective incomes, a court must also consider the means of the parents and has the discretion to make an order accordingly.
