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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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  #11 (permalink)  
Old 01-14-2009, 07:51 PM
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helfox,
That's a good ?. I sent it to my lawyer for comment if he will not bill me. This is a big one.

FN
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Old 01-15-2009, 04:42 PM
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Here is what my lawyer said.


"I saw the article you sent in.

I am not aware of a case where this issue has been litigated. My sense is that it would not get too far – children need post-secondary expenses and they are expensive so the courts look for ways to assist children – not the opposite.

Also, I am not sure section 15 applies because a child who has parents who are still together could technically make a claim on his or her own for a contribution to post-secondary expenses.

So the fact that parents are not separated does not preclude them from facing a claim – it is just that not many children would actually pursue such a claim – these sorts of claims are often pursued in a situation of separation.

But, since a child of parents who are not separated can make a claim then there is no discrimination?


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Old 01-15-2009, 04:48 PM
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I copied the response below from another forum where somebody was asking the same question i.e. "how come I am forced to pay for my kids education if I am divorced?" I thought the answer was very good:


I think the easiest suit to win would be if a kid was,
-20 years old
-his parents were married
-he is in university/college
-his parents do not support his post secondary education at all

I think he could argue of being discriminatated against due to his
parents marital status.

He would argue that kids of divorced parents received post
secondary support why doesn't he. That is, it is discriminatory to
give adults (the 20 year old) less rights simply due to the marital
status of their parents.

I think a 20 year old person could reasonabily argue that he was
being discriminatated against as he was not getting the same rights
that other 20 year olds are getting simply due to his parents marital
status.

I think the Judge might be stuck in the position where he would
have to say all parents are obliged to support all 20 year olds in
post secondary education and as this would cause a stink this element
of the system would collapse. Or the judge would say the section in
the divorce act is discriminatory to the 20 year old so this section
should be scrapped and no kids are entitled to post secondary support
from their parents.
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Old 01-17-2009, 06:41 PM
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Helfox and FreeNow,

In the case I mentioned above, the 20 year old would not be making a claim against his parents, but he would be making a claim against the gov't that he is being discriminated against due to his parents marital status. Looked at this way, do you think your lawyer would see this claim as having substance?
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Old 01-19-2009, 10:25 PM
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I see by the arguments for and against that the law is not clear on these matters at all.

Just to keep everyone in the loop, I just received a threatening letter from my ex’s lawyer. I had proposed an amount to settle this but this was rejected. The offer I made was taking into consideration tax reductions and credits that my daughter and ex would be entitled to… income from all sources so-to-speak… so, the offer was to keep paying CS plus another $6000.00 a year towards post secondary education. This was flatly denied pointing out that DIVORCEMATE.COM is up to date and does not have those figures in their calculations. The counter offer from them is for me to continue paying CS plus another $9400.00 for this year. If I reject the offer, they will file a motion for me to pay 100% plus costs since she is not working any more.


My first thought was to write a scathing letter to her lawyer asking what do they intend for me to give up – Mortgage payments, Car payments, taxes, food?


I guess the best response at this moment is to just inform my lawyer to let them file the motion and take it from there.


Any words of advice?
  #16 (permalink)  
Old 01-20-2009, 06:51 AM
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If she is still using her mother's home as her primary residence, and is in school full time, the onus is on the requesting party to show need.

In doing so they would have to demonstrate that they have exhausted all other financial avenues.
IE part time employment, grants, bursaries, scholarships, OSAP, etc.

They would have to show that they made every possible application to gain financial aid from every possible source.
FYI: EVERY university/College has numerous grants and bursaries and scholarships for individuals to apply for based on financial need, academic excellence, for those demonstrating involvement in their community or school by volunteer work or mentoring, there are sports related funds, as well as funds for those in a particular program but does not depend on financial need. There are those for women in specific, or persons in non-conventional roles, the list is endless.

If I were you, knowing what program she is enrolled in, I would go to her school web site, under financial assistance or grants etc, and see what is offered, and how many of these awards she could apply for. This does not mean she will get them, but if she has not taken the initiative to send in the applications then she hasn't exhausted all avenues.

I applied for about 15 when my son stated college, some were geared towards first year students, some program specific, some based on his academic path and goals, and he qualified for 2 very large amounts, and I had a significant income last year. I filled out the forms, he provided the documentation, and they eventually contacted him via letter. Looking into this may help your case. It may help her too.
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Old 01-20-2009, 07:39 AM
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I have a question regarding post secondary education. Is a 22yr old not living at home and as of now not in school entitled to continuing CS as he MIGHT attend school in the future. Going to court next month and this is his mother's big reason to continue CS. And of course SS because he cannot withdraw from her charge.
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Old 01-20-2009, 08:58 AM
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Quote:
Originally Posted by lawchanger View Post
I have a question regarding post secondary education. Is a 22yr old not living at home and as of now not in school entitled to continuing CS as he MIGHT attend school in the future. Going to court next month and this is his mother's big reason to continue CS. And of course SS because he cannot withdraw from her charge.
Not in school, & Not living at home, I think not.
The biggest issue is the fact that he no longer resides with the previous custodial parent. Living on his own away from the custodial parent and not in school lends to the fact that he has withdrawn from the charge of the custodial parent, thus not deserving of CS.
If he had remained at home under the full support of his parent, and had at minimum submitted an application for school, the custodial parent may have a claim, but she would have to show need and that the child remained a child of the marriage for the purpose of CS.

CanLII - 2008 ONCJ 493 (CanLII)
Section 31 of the Family Law Act, R.S.O. 1990, c. F-3, as amended, reads as follows:
31. Obligation of parent to support child.—(1) Every parent has an obligation to provide support, for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.
(2) Idem.— The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.


Is a child, a child of the marriage within the meaning of the Divorce Act?
(a) Is the child eligible for student loans or other financial assistance?
(b) Does the child have a reasonable career plan?
(c) The ability of the child to contribute to his or her own support through part-time employment.
(d) Parental plans for the child’s education, particularly those made during cohabitation.
(e) Whether or not the child has unilaterally terminated his or her relationship with a parent from whom child support is sought.
(f) 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.

Other case law

CanLII - 2006 ONCJ 148 (CanLII)

CanLII - 2005 SKQB 131 (CanLII)
[in this one, the child was NOT in school or enrolled, was NOT living @ home and had essentially withdrawn from the "charge" of the custodial parent. No CS ordered].

CanLII - 2007 SKQB 15 (CanLII)
[again, child not in school, not living with parent, employed, no CS support ordered]

CanLII - 2007 ONCJ 27 (CanLII)[adult child not in school, not living with parent, CS terminated and The respondent father is entitled to recover any overpayment]

CanLII - 2006 ONCJ 387 (CanLII)
"In my view, the lack of communication prior to the commencement of these proceedings, halfway through the applicant’s second year of post secondary education, precluded any enquiry by the father, discussion or input into the decision-making process and thereby relieves the respondent father from any obligation to pay support or contribute to expenses before the commencement of the 2006-2007 academic year."
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Old 01-20-2009, 09:56 AM
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Thank you for your response. Again with the same 22 yr old, his mother is suggesting that he has been diagnosed with obsessive compulsive disorder and suffers from tourettes syndrome and of course learning disabilities and therefore cannot withdraw from her control. He lives with his girlfriend for over a year, drives an Acura, has 2 jobs is well adjusted and a great kid. He does use her address on his drivers license but he does not hang his hat there. What should we do?
  #20 (permalink)  
Old 01-20-2009, 11:10 AM
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One of the above stated cases includes a claim for CS for an adult child with learning disabilities.
But because she was not living at home nor enrolled in school CS was terminated.

Here is the link to search case law.

CanLII - Advanced Search

If it can shown that an existing claim is similar to a previous case, generally a judge will conclude the same when making his final decisions.
Care should be taken not to overwhelm though, find one or two very similar cases, (explain the similarities) and request that the same outcome should ensue.
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