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5th year high school

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  • 5th year high school

    My son wants to do a 5th year at high school; I am pleased about this as he did not apply for post-secondary because he did not know what he wanted to do after high school. He has now decided to go to University next in 2009. He will have to improve his Math and Science grade to pursue a degree in Science. His birthday is in Nov. so he will not turn 18 until then. My question is he still considered a student for CS purposes.

  • #2

    I believe they would still be considered a student as long as they are enrolled in school even if it was part time or a partial course load.



    • #3
      I find this interesting as I have a (somewhat) similar situation with my daughter. She is 18, completed high school last year but is upgrading a couple classes prior to post-secondary education later this year. She puts in about 2 - 3 hours per day but according to my wife (and lawyer) she is not considered a dependant unless she is officially enrolled in post-secondary classes.

      I find this is sort of a gray area, she is not a full time student but at the same time can only work part time because of her studies. If this is an issue with my wife then I can only imagine what I will be arguing about over the next couple years. Will she argue the children are not considered students in between 1st and 2nd year programs during the summer months?

      Before my wife left there would have been no issues about supporting her "in full" while she pursued her studies, now she will just have to sacrafice a bit, as I've been told, because of the situation.


      • #4
        FWIW... I was in court (Ontario) last month and my child who has finished his BA is planning to take one extra course in August. The judge ordered the child support to continue.


        • #5
          In the matter of L.J.V. v. K.M.V., 2004 BCSC 1225 (CanLII)

          dealt with a similar issue and defined the threshold that once a child reaches the age of majority, the onus is on the spouse who claims support to prove that the child is a child of the marriage. At paragraph 17 of the Judgement, Mr. Justice Joyce referred to well known principles for consideration as listed in [Farden v. Farden (1993), 48 R.P.L. (3d) 60 (B.C.S.C.]. As listed:

          Paragraph 17
          [17] The question remains whether D. ceased to be a child of the marriage in June 2002, when he apparently dropped out of the systems analyst program, or in June 2003, when he found work. Once a child reaches the age of majority, the onus is on the spouse who claims support to prove that the child is a child of the marriage. The factors to consider in determining whether an adult child remains a child of the marriage by reason of post secondary education are well known in [Farden v. Farden (1993), 48 R.P.L. (3d) 60 (B.C.S.C.] and include:
          (1) whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time 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.



          • #6
            Another good case in respect to the issue at hand which refers to multiple jurisdictions across Canada at the appeal level:

            W.D.D. v. P.E.S., 2006 MBQB 189 (CanLII)


            The issues at paragraph 2:
            [2] The issues which must be determined are:
            a) Is either adult child a “child of the marriage” as defined by s. 2(1) of the Divorce Act ? and

            b) If either adult child is a “child of the marriage”, what is the quantum of child support that is payable by Mr. P.E.S.?

            At paragraph 15 to 20 of the judgement further analysis of jurisprudence from other jurisdictions with respect to the federal Divorce Act:
            [15] For a parent to have an obligation to pay child support, a child must be a “child of the marriage” as contemplated by the Divorce Act. Section 2(1) of this legislation defines “child of the marriage”. It states, in part:

            “child of the marriage” means a child of two spouses or former spouses who, at the material time,

            (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause to withdraw from their charge or to obtain the necessaries of life;

            [16] Our courts of appeal have held consistently that the determination of whether a child is a “child of the marriage” is made after there has been a consideration of a variety of factors. In the context of adult children pursuing post-secondary education, courts of appeal have been equally consistent in affirming that the age of the child is not solely determinative of whether a child continues to be a “child of the marriage”.

            [17] In Newman v. Thompson 1997 CanLII 11526 (MB C.A.), (1997), 118 Man.R. (2d) 177, our Court of Appeal stated, in part:

            ¶14 … the courts have consistently held that a child who is undertaking a course of education remains one who may be entitled to some support. This possible entitlement is not limited to a particular level of education or to a preset age limit. The child does not even have to live at home with one of the parents. The line to be drawn is flexible.

            [18] In MacLennan v. MacLennan, 2003 NSCA 9 (CanLII), 2003 NSCA 9, the Nova Scotia Court of Appeal endorsed the view that it had previously expressed in Martell v. Height 1994 CanLII 4145 (NS C.A.), (1994), 3 R.F.L. (4th) 104, wherein it had stated:

            … courts recognize jurisdiction under s. 2(1) of the Divorce Act to hold parents responsible for children over 16 during their period of dependency. How long that period continues is a question of fact for the trial judge in each case. There is no arbitrary cut-off point based either on age or scholastic attainment, although as these increase the onus of proving dependency grows heavier. As a general rule parents of a bona fide student will remain responsible until the child has reached a level of education commensurate with the abilities he or she has demonstrated, which fit the child for entry-level employment in an appropriate field.

            [19] The Nova Scotia Court of Appeal continued,

            … As required by the provisions of the Divorce Act … it must be shown that the child is unable to withdraw himself or herself from parental charge. The party claiming support has a burden of establishing entitlement.

            [20] The British Columbia Court of Appeal recently accepted the dicta of the Nova Scotia Court of Appeal in Martell v. Height, supra, in N. (W.P.) v. N. (B.J.), 2005 BCCA 7 (CanLII), 2005 BCCA 7.



            • #7
              I think.....

              It also depends on the current agreement as all are different. Some say must be in full time school and others don't, with my ex and his ex and kids it had to be as long as they were in full time school and turned 18. Once the kids took 1 to 2 years off after high school to work the support stopped and did not start up again once they went back but what my ex was able to do was pay support to the kids directly to help them with school instead of giving it to there mother whom would never allow the kids to benefit from the support.


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