Brett Coleman

post-secondary-expenses-to-pay-or-not-to-payOne of the more common complaints we as family law lawyers hear is with respect to post-secondary expenses.

Confusion soars the first time a divorcing parent hears that the law obligates them to contribute to their child’s post-secondary expenses. Quite understandably so when one considers that there is absolutely nothing that stops parents in in-tact marriages from opting not to assist with such expenses aside from helping their child fill out their student-loan applications. There is no law against that; that is simply the exercise of autonomy in one’s role as a parent. And socially-speaking, it is fairly well-accepted that limiting financial assistance in this way has value in terms of teaching responsibility, hard-work and accountability in children nearing adulthood.

Once divorced, that is no longer an expression of parenting autonomy that is legally permitted. On the contrary, section 7(e) of the Federal Child Support Guidelines specifically includes “expenses for post-secondary education”, which are usually (but not always) shared by divorced parents in proportion (pro rata) to their respective “Guideline incomes”. It is generally accepted that such expenses include tuition and other mandatory school fees and books. Residence costs can be dealt with differently, depending on whether the child is living at home with one parent during post-secondary studies or in alternate accommodations.

Some parties may take the position that they never had any intention of assisting their child with post-secondary expenses during the marriage, but the reality is that unless both parents agree otherwise the Federal Guidelines will likely rule the day.

Beyond that, there is also a second inconsistency in the law surrounding child support for children who have graduated from high school. There is a legislative difference between child support owing for children born to married parents, and children born to unmarried parents (i.e. common law, or otherwise). While the basic principles are the same, the major difference is that pursuant to the Divorce Act (Federal legislation, which applies to married couples) and case law precedent, child support is generally payable to the end of a child’s first four-year post-secondary degree, while pursuant to Alberta’s Family Law Act (Provincial legislation, which applies to unmarried couples) a child engaged in post-secondary studies but who is otherwise capable of withdrawing from parental care can be cut off after age 22. That is, there is no obligation on either parent to support a child who is older than 22 years old and in post-secondary studies so long as the child is not incapable of “withdrawing from parental charge”  from reasons apart from his/her studies.

Sure, many kids go direct to college/university from high school and will have completed a 4-year degree by the time they turn 22 years old. However, many kids also take some time after high school to consider what it is they truly want to do with the rest of their lives, instead of wandering aimlessly through what can turn into a 4+ year very expensive venture that began with “general studies”. Children of married/divorced parents have the ability to do that, and thereby resume “child of the marriage” status triggering the obligation to support, when they do decide to return to school. It strikes me as incredibly unfair that some kids are treated differently in this respect, just because their parents happen to not have married one another. Perhaps there is a need for legislative change, but either way these examples illustrate the complexities of all of the various ways in which family law operates, and operates differently in different circumstances.

If you are newly separated and your children are approaching university age, you would be well-advised to get timely advice as to the ways you will be affected and the obligations that have been triggered.