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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 11-22-2008, 03:38 PM
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Question Post Secondary Education

Hi,

I attended a case conference yesterday to deal with the matter of post secondary education expenses. I have a daughter that has started attending University for the first time this past September. As the University is 2 hours from home, she is living in residence. I had proposed to my ex that during the months she is at school, I would only pay her directly for the 1 younger daughter still at home. I would take the amount that made up the difference and give it to my older daughter, plus I would contribute extra to help with tuition and living expenses.

The Judge didn't agree with my position. He stated that since my daughter would still be coming home every once in a while, plus Christmas break, Spring break and Summer, that my ex would still have to maintain her room. Therefore, I still need to give the full amount of child support plus contribute my fair share to the University expenses. That amount is yet to be determined as my ex did not provide any receipts. The Judge said that without receipts, he would not take anyone's word for anything.

Another part of this story is the amount that my daughter would have to contribute towards her own education. It seems that as a child of divorce, the children have it seems, at least under what I heard yesterday, that they don't need to pay for anything. They have an entitlement. If she gets a job and earn a little money, that is for her to enjoy herself with. As part of our separation agreement, my daughter was to try to get grants, loans, scholarships, etc. She did apply for anything because my ex told her that she didn't need to. That her education was all covered.
All-in-all, after the conference, I felt like I was getting shafted in this whole ordeal. Don't get me wrong, I love my daughters and I do want them to be successful in life. My biggest issue is that I already pay through the nose for child support and now I have to pay even more. I am not a rich person. I don't come from money nor do I have much left after paying my own expenses. Where does it end?

Have any of you on this forum ever encountered this issue? How did you handle it? Any advise to keep me from going broke in the process?

Thanks!
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Old 11-22-2008, 04:49 PM
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Please correct: "She did apply for anything because my ex told her that she didn't need to." to she did NOT Thank you.
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Old 11-22-2008, 08:24 PM
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Unfortunately, from what I have read in the guidelines, you are still obligated to pay full child support while your daughter is full-time in school... plus any post-secondary expenses that your agreement states you are to pay. Sucks, I know. I'm not looking forward to my stepson going away to college or university, and that's not for another 12 years, at least!

Usually, the parties come to some sort of agreement on their own. The "norm" is that you pay child support per the guidelines, plus your proportionate share (calculated according to income) of tuition/residence/books, as post-secondary education is considered an extra-ordinary expense. I guess they think of it as a really expensive extra-curricular activity!

It sucks, I know. Hopefully someone who's been through this can point you in the right direction. Good luck!
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Old 11-24-2008, 07:50 AM
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It is true that you are to pay full CS plus contribute to the post secondary expenses, BUT under the assumption that the adult child HAS applied for but been unsuccessful in attempting to get financial aid from all possible sources. IE she must apply for OSAP, any grants and scholarships offered by the college/university, as well as bank loans, and MUST also provide documentation to the courts and you that she has exhausted all avenues of outside financial help. Void and/or in conjunction to any of these, then she, like any intact family must also contribute to her own post secondary education through summer employment and possible part time employment during school. She is not entitled to just "spend" her income any way she sees fit. Use this link,

CanLII - Advanced Search

to search case law and you will find dozens of cases where this is the case. For your ex to tell your daughter and believe the same, that she does not have to seek outside financial aid is NOT true. She is hurting her daughter's chances at a higher education by telling her this nonsense.
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Old 11-24-2008, 02:36 PM
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Default Adult Child & CS

CanLII - 2004 CanLII 7764 (ON S.C.)

13 Courts have tended to regard a child over the age of majority who is in full-time attendance at an educational institution and engaged in a reasonable pursuit of further education or training to be a "child of the marriage" and entitled to support. While there may be a presumption of entitlement in such circumstances it does not entirely discharge the onus on the applicant as it must be demonstrated that the child, by reason of such pursuit of education, is unable to withdraw from the charge of parents or to obtain the necessaries of life: Wahl v. Wahl 2000 ABQB 10 (CanLII), (2000), 2 R.F.L. (5th) 307 (Alta.Q.B.). Farden v. Farden 1993 CanLII 2570 (BC S.C.), (1993), 48 R.F.L. (3d) 60 (B.C. Master) is oft quoted for the following list of relevant circumstances to be considered by the court, at p. 64:

(1) whether the child is, in fact, enrolled in a course of studies and whether it is a full-time or part time [sic] course of studies;
(2) whether or not the child has applied for, or is eligible for, student loans or other financial assistance;
(3) the career plans of the child, i.e., whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;
(4) the ability of the child to contribute to his own support through part-time employment;
(5) the age of the child;
(6) the child's past academic performance, whether the child is demonstrating success in the chosen course of studies;
(7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;
(8) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.


¶ 14 Our Court of Appeal in Zaba v. Bradley 1996 CanLII 4930 (SK C.A.), (1996), 137 Sask.R. 295 similarly observed that in determining whether an "adult child" in attendance at university qualifies as a "child" under the Act and, if so, the extent of the obligation of parents to support their child:
[10] . . . requires the court to consider many factors including: whether the child is eligible for student loans or other financial assistance, whether the chid has reasonable career plans, the ability of the child to contribute to his or her own support through part-time employment, parental plans for the child's education, particularly those made during cohabitation, and at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated his or her relationship with the parent from whom child support is sought. A further consideration is whether the child could have reasonably expected one or both of the parents to have continued to furnish support if the marriage had not broken down.
¶ 15 While it would appear beyond debate that an adult child must make reasonable efforts to contribute to his or her support and education, it is not so clear how this is to be applied in an individual circumstance. James G. McLeod, in an annotation to Wahl, supra, observed at p. 310:
. . . What investment must a child make in his or her future? Does a family's historical value system affect whether a child should be required to apply for a loan? Should taxpayers' money be used to provide an education for a child whose family is able to do so? Why should a separated family lose access to government funds that are available to non-separated families?
¶ 16 To these questions may be added others. If the family had not separated and if the child would not have been entitled to a student loan on account of the parents' resources, to what extent should the fact of separation entitle the payor to eliminate or reduce a child support obligation by requiring the child to obtain a student loan because the child now qualifies given the resources of only the "custodial" parent? To what extent should an adult child be expected to graduate with a substantial debt load if one or both of the parents have the resources to contribute? If the family unit had remained intact and the child living at home while attending university, one assumes that in most cases the child would be provided with food and shelter even if the child had the resources through a combination of earnings and student loans to cover his or her direct education expenses and personal expenditures. If that family is separated to what extent ought the student's earnings reduce a payor's obligation to contribute to the expenses of food and shelter? When the child was in Grade XII the payor's contribution to food and shelter is quantified by the Guidelines as falling within the Table amount of support. Does the quantification of this obligation change a few months later?
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Old 11-24-2008, 02:44 PM
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CanLII - 2007 NSSC 128 (CanLII)
in the above case CS was reduced for the months the child was away at school, see paragraphs (21) & (22).
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Old 11-26-2008, 10:55 AM
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Hi FL_Needs_To_Change!

Thank you very much for the wealth of information. I really appreciate it.

Any suggestions as to how I and my Lawyer can get the message across to my ex and her Lawyer without having to go through the long, expensive legal process? It seems that even though there are lots of case laws on the issue, everyone likes to interpret them differently.>>

Thanks again!
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Old 11-26-2008, 11:28 AM
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Given that both parties are represented by legal council, I think a simple matter of sending a letter of intention to the ex's lawyer would suffice in this particular instance. Perhaps with the inclusion of significant case law to back up your position, and advise that you are prepared to take the matter to court should they feel that the daughter does not have to exhaust all avenues of outside financial help as well as contributing to her own post secondary costs as per the family law.

I think you have a very strong case if taken to court, so why your ex’s lawyer does not see this is anyone’s guess, perhaps he/she is financially driven rather then client focused.
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Old 11-28-2008, 10:15 AM
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Thank you FL_Needs_To_Change!

Does anyone know why tax reductions, credits and grants from the governments are not mentioned in these cases? Take for example; the Ontario government will give a student in the Province, $150.00 grant towards text books. All the student has to do is apply on the web for it.

The tuition paid reduces the taxes one has to pay by 15%. So, for example, if tuition were $5000.00, this would reduce the tax by $750.00. This can be claimed by the student if the have income or it can be transferred to the parent.

There is also a tax credit of $400.00 a month for living allowance each month that the student is in full time attendance. The amount is less but also applicable to part-time student.

Also, there is a $65.00 a month text book credit for each month that the student is in full time attendance.

None of these seem to be taken into consideration. This would reduce the total amount that should be split between the parties.
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Old 01-14-2009, 07:13 PM
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Default Post Secondary Education and Charter Rights

Does anyone know if the right of a child of divorced parents to have their education paid for has ever been challenged as a violation of Charter rights. It seems there may be a violation of section 15 equality rights on 2 fronts. First, the parents of a divorced child are obligated to pay for the post-secondary education of their children, an obligation that does not exist for all parents. Second, the children of parents who are not divorced have no legal right to have their education paid for. Regardless of the fact that most parents have the best intentions for their children, the reality is some parents may choose not to pay for their childs education due to lack of resources or other reasons. Despite the supposed best intentions of Parliament the law still leads to unecessary litigation to resolve these issues. For the sake of argument if I was still married I would not be obligated to pay, if I wanted to pay and my wife didn't she could not easily take me to court over the issue and, my child would have difficulty litigating to force me to pay.

Simply put, the child of divorced parents has been granted a legal right that does not exist for other children and, divorced parents have been given an obligation that does not exist for married parents. On both fronts there appears to be a violation of Section 15.

Furthermore it may not be in the best interest of all children to pursue post-secondary education at 18 as they may not be ready. Should married parents tell their child that they need to shape up before they are willing to pay, that child would have little recourse. If the same child came from divorced parents they could easily litigate the issue.

Does anyone know if this has been challenged or how it got by the Human Rights Law Section of DOJ?
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.




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