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Financial Issues This forum is for discussing any of the financial issues involved in your divorce.

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  #1  
Old 07-09-2006, 06:29 PM
cigar7 cigar7 is offline
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Question University Education Cost Limitations

In regards to education costs of children, I understand in Ontario that one is obligated to fund costs, up to the end of the first degree or diploma.

What if the child is just finishing secondary school at age 20/21 and now wants to go to University? The child has taken 7 years to finish a four year secondary school program. I suspect that the University first degree will also drag on for a long time.

Are there any restrictions/limitations on this first degree cost? Do out of province degree programs have to funded? Can the parent place any restrictions on the financial costs? Do the costs have to be paid upfront, as incurred, or after they are incurred?

Is there anyway to get out of paying the post secondary education costs?
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Old 07-10-2006, 08:36 PM
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cigar7,

yes generally the courts would order child support until the child obtains their first degree or diploma.

I have to ask why it took so long. Perhaps they started high school in an "applied" (college)area of study then discovered that they had to redo some courses at an "academic" level to be accepted into university. If this was the case, then it wouldn't be unreasonable.

lv
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Old 07-11-2006, 10:15 AM
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Default Why so Long?

It took so long because of several reasons. First, he got involved with drugs, and some bad friends. This resulted in him dropping out of semesters. He would be good for a month and start screwing around again, not doing homework, not handing in assignments, not studying for tests, which of course resulted in no credits. Then he didn't want to take a full course load in some semesters, too much work in his mind. He took one course 3 times, and failed it each time, even with a private tutor. He didn't like the teachers in some of his courses, so he would drop out. He puts more effort in socializing than academics. Some schools kicked him out because he did not obey the teacher or the school rules, which resulted in him loosing his credits by not completing the courses. Sometimes he would stay at a friend's house, and not come home for days, missing classes. Of course he would blame me for him not wanting to come home, his friends treated him better. He sited the house rules were not to his liking in that there was no cooking in the house after 11 PM when the next day was a work day.

I haven't seen any deep dedication or an honest sincere effort to achieve academic credentials. He did go to several schools and yes, some were private schools. I feel he has been provided exceptional opportunities, at the secondary school level to become successful, with very poor results.

Would the court still force me to support a child for the first diploma with this type record?

The bottom line is that I wouldn't mind supporting his academic ambitions if there was a high or reasonable probability of success within normal paramaters. But historically, there has been no such pattern of success.
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Old 07-11-2006, 11:19 AM
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Quote:
Would the court still force me to support a child for the first diploma with this type record?
Not necessarily. Children may no longer considered children of the marriage based on their actions and efforts from the time they complete highschool until the decide to attend college. Many factors are involved. What if your child finally enrolled in college at the age of 26? 29? Perhaps he applies every year and doesn't get accepted until age 35? Would you be reponsible for contributing to his post-secondary education expenses then? The line must be drawn somewhere.

There are quite a few cases out there that deal with this kind of issue. I suggest searching CanLII to see what you can find, or LV may be able to dig some good ones up for you

Lindsay
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Old 07-11-2006, 01:09 PM
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cigar7,


an interesting case under the divorce act

Morgan v. Morgan
http://www.canlii.org/sk/cas/skqb/2006/2006skqb76.html

the issues

1. Is Amy still a child within the meaning of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)?


2. If Amy is still a child within the meaning of the Divorce Act what is the amount of child support the respondent is to pay?



ANALYSIS

[8] 1. Is Amy still a child within the meaning of the Divorce Act?



The Divorce Act describes a child of the marriage as follows:

2(1) In this Act ...

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

(a) is under the age of majority and who has not withdrawn from their charge, or

(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;

[9] The determination as to whether a child over the age of eighteen years is still a child within the meaning of the Act was set out by the Saskatchewan Court of Appeal in Zaba v. Bradley, [1996] S.J. No. 5. At paragraph 10 the court set out the factors that are to be considered in determining the issue as to whether a child such as Amy qualifies to be a child under the Act:

. . .whether the child is eligible for student loans or other financial assistance, whether the child 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.


[10] Since the Zaba v. Bradley, supra, decision Saskatchewan courts have established some additional factors to be considered namely:

1) the age of the child;

2) the child’s post-academic performance;

3) whether the child is successful in his or her current studies (See: Harder v. Harder 2003 SKQB 286 (CanLII), 2003 SKQB 286 and Fernquist v. Garland, 2005 SKQB 519 (CanLII), 2005 SKQB 519).


I am satisfied that the loss of a class or two when transferring from one university to another is not a sufficient factor to dismiss the application for support. It is apparent that Amy meets the criteria set out in these decisions excepting that there is one issue in contention, that is the fact that the respondent and Amy have had a falling-out in June of 2005. They have had no contact since June 23, 2005.


lv
  #6  
Old 07-11-2006, 01:23 PM
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an interesting case where the court held that an adult child (18 yrs old.) taking online post secondary courses through Athabaska University deemed to be in need of child support. Also first family support obligation rule of thumb applied.

Hillier v. Hillier, 2005 ONCJ 120
http://www.canlii.org/on/cas/oncj/2005/2005oncj120.html

lv
  #7  
Old 07-11-2006, 01:31 PM
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a similar case to your situation at hand


Cram v. Cram, 1999 CanLII 5378

http://www.canlii.org/bc/cas/bcsc/19...bcsc11616.html

Paragraphs seven to thirteen respectively

[7] The status of Benjamin is in issue.


[8] The Divorce Act defines "child of the marriage" as

". . . a child of two spouses or former spouses who at the material time, . . .

e)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"



[9] Despite his age, Benjamin has yet to graduate high school. He is presently working, and attempting to complete the one fine arts course he still requires. His efforts in school have not been assiduous. The defendant offered the following summary of Benjamin's progress in his affidavit:

11.Unfortunately, despite having much potential, Benjamin has not been studious. The following sets out his recent school and work history, to the best of my recollection.


a)January 1996, Stanley Humphries Secondary School expelled Ben for non-attendance.


b)February 1996 - Ben enrols in the DESK correspondence program.



c)April 1996 - Ben quits the DESK correspondence program.



d)April 1996 - I move to Nelson so that Ben may attend L.V. Rogers High School.



e)May 1997 - Ben does work study at Shell (work experience at a gas station) and the Network Connection (work experience at a computer store).



f)June 1997 - Ben completes grade 10 and most of grade 11.



g)September 1997 - Ben re-enrols in Stanley Humphries Secondary School (Castlegar) for his grade 12 year.



h)November 1997 - Ben drops a failing course and continues 3/4 time at school.



i)January 1998 - Ben leaves Chuck Cram to live with Sandra Cram.



j)April 1998 - Ben drops failing courses and continues 1/2 time.



k)April 1998 - Ben begins part-time house cleaning and landscaping contract business.



l)June 1998 - Ben fails courses due to non-attendance and doesn't graduate.


m)July 1998 - Ben enrols in a road-flagging course and earns a Certificate.



n)July 1998 - Ben gets sporadic flagging work - about 20 percent of the time.



o)August 1998 - Ben quits the contract business for Dawson Creek job that falls through after about 5 days.



p)September 1998 - Ben re-enrols in Stanley Humphries Secondary School for a final semester to graduate.



q)October 1998 - Stanley Humphries Secondary School expels Ben (again) for non-attendance.


s)(sic) December 1998 - Ben works occasionally

(about 20 percent time) doing roof shovelling, and as a labourer for his grandfather.



t)February 1999 - Ben begins working on a part-time basis (about 75 percent time) at a 7-11 convenience store in Castlegar.



u)April 1999 - Ben enrols in Stanley Humphries Secondary School/Pathfinders program.



v)April 1999 - Ben quits 7-11 and starts working approximately 3/4 time at the Canadian Tire Store in Castlegar.



w)July 1999 - Ben graduates from Stanley Humphries Secondary School/Pathfinders program.



x)September 1999 - Ben's graduation is rescinded for lack of a fine arts course.


y)September 1999 - Ben begins full time work at Lordco Parts Store in Castlegar.



[10] The defendant further deposes that Benjamin has told him since April of 1999 that he intends to work full time for at least a year and thereafter to attend the local college, Selkirk, to obtain a business diploma.



[11] The plaintiff's position is that Benjamin remains under her charge and that he needs to save what he can for college. His opportunity to do so will obviously not be enhanced if no support is paid.



[12] I do not consider that Benjamin's performance while he was under the age of majority has any particular relevance. The "duty" counsel for the defendant extracted from Sherlock v. Sherlock [1999] B.C.J. No. 1856 per Loo, J.:

"There is no absolute duty of a parent to support an adult child who is attending school. If a parent does contribute to the support an adult child who is pursuing an eduction, there is a corresponding duty on the child to complete the eduction as expeditiously as possible and to contribute as best as he or she is reasonable able, to the cost of the eduction, maintenance and support. . ."


is the obligation of an adult child who is unable to withdraw from the charge of his or her parents to do what he or she can to contribute and attain independence. Were Benjamin presently enroled full time in an educational program, I doubt his dilatory progress in school while still a minor would weigh very heavily in the balance. The court must assess the position of the adult child in light of his or her efforts as an adult.



[13] Here, the situation is that, while Benjamin has relatively low paying employment, he is presently able to support himself, that is, to pay room and board or otherwise to withdraw from the charge of his parents. This may not always be so. Should Benjamin enrol in a program of education in the future he may well, at that time, be unable to withdraw from the charge of his parents. It may be that if he is not supported now his needs will be greater when and if he decides to go back to school. But while Benjamin is capable of withdrawing from the charge of his parents they have no duty to support him. On the material before me he is not now an adult "child of the marriage". He is therefore not entitled to support.

lv
  #8  
Old 07-11-2006, 01:40 PM
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A case that lists some criteria to apply, an adult child being enrolled in a post secondary instituition is not enough

Johnson v. Johnson, 2004 CanLII 21289 (ON S.C.)

http://www.canlii.org/on/cas/onsc/20...onsc12084.html

Paragraphs six to eighteen respectively

Discussion

6. The applicant argues that he should no longer be required to pay support for Paul or Mark as they have completely rejected him and therefore no longer qualify as children of the marriage. The respondent argues correctly, that a number of factors must be take into consideration when assessing whether or not support should continue for an adult child.

7. The reasons in Farden v. Farden [1993] B.C.J. No 1315 New Westminster Registry No. DO31221 a decision of Master Joyce, quoted with approval at both the trial and appeal court levels, make it clear that mere attendance at a post-secondary educational institution is not enough to guarantee support. The reasons list eight factors to be considered by the trier of fact.

▪ 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;


▪ Whether or not the child has applied for or is eligible for student loans or other financial assistance;


▪ The career plans of the child, i.e. whether the child has some reasonable and appropriate plan or simply going to college because there is nothing better to do;


▪ The ability of the child to contribute to his own support through part-time employment;


▪ The age of the child;


▪ The child's past academic performance, whether the child is demonstrating success in the chosen course of studies;


▪ What plans the parents made for the education of the children particularly where those plans were made during cohabitation;


▪ At least in the case of a mature child who has reached the age of majority, whether or not the child is unilaterally terminated of relationship from the parent from whom support is sought.


8. While it is not necessary that the court make positive finding on all factors to order continued support, Darlington v. Darlington 1997 32 R.F.L.(4th) 406 (B.C.C.A.), complete rejection of a support paying parent by an adult child without justification may result in an order of termination. Law v. Law reflex, (1986) 2 R.F.L. (3d) 458 (Ont. H.C.), Marsland v. Gibb (2000) R.F.L. (5th) 406 (B.C.S.C.).

9. In this case the applicant's sins are no more than mistakes made by many inexperienced and unimaginative fathers who seek to establish a relationship with children they had neglected while the parties were together. The applicant worked full time. He also participated in a development company owned by the respondent’s father and spent much of his leisure time working for that company building houses. As a result he failed to interact with his sons, support their activities, or show much interest in their pursuits. They looked solely to their mother for "parenting".

10. After separation, when he realized his loss, the applicant tried to insist on the boys spending periods of time with him. Because of the conflict between the parties this became an issue and a source of conflict. Naturally this increased the boys’ reluctance to see their father as every visit was fraught with tension.

11. The problem was compounded by the applicant's total lack of experience as a father. When he had the boys he didn't know what to do with them. As a result they were bored. Since the applicant's experiences with his sons where unsatisfactory and his relationship with their mother was adversarial, he paid only the ordered support but was unwilling to provide extra funds for any special activities.

12. While the applicant must shoulder much of the blame for his alienation from his sons, his actions come nowhere near the type of activity which in my view would justify the bitter and absolute rejection to which he has been subjected by Paul and Mark. Their affidavits list every minor mistake made by their father in his clumsy attempts to maintain contact but reveal little or no effort on their part to understand or to forgive.

13. While hurt and bitterness are understandable in young teenagers who have suffered through a separation, the distance provided by 12 years of living apart from their father should have given them sufficient perspective to allow at least civil contact with him, particularly since support paid by him has always been a significant factor in their finances.

14. Paul and Mark have both made a success of their lives. Paul has completed a B.A. and Mark is in the third of four years towards his. Paul has been very successful at financing his own education by obtaining lucrative summer jobs, which have allowed him to complete his first degree debt-free. Mark has been less successful and has a small student loan at the present time.

15. There is no indication that either young man is "marking time" in university, nor is there any indication that they have not made appropriate efforts to finance their own education. They are both doing well in school, and there is no evidence that either parent is anything but pleased with the fact that their children are in university.

16. Most of the so-called Farden factors would therefore favor a continuation of support. However, I find that the level of rejection of the applicant by his sons is so significant that it must be reflected in any order made.

17. The cases to which I have been referred, have all had somewhat binary results. Either the rejection was so complete that support ceased or the threshold was not met and support continued. In this case I believe that an approach seeking a middle ground is more appropriate. The applicant's position is that no further support should be paid. The respondent's position is that the applicant should retroactively pay extraordinary expenses for the boys’ university education. In my view continued payment of support at the level set by Justice Weekes for each child to the end of one post-secondary degree would strike an appropriate balance between these competing results. I say this for the following reasons.

18. It would ensure that Mark and Paul were treated equally. It would also acknowledge the strong obligation to pay support where positive findings on almost all of the so-called Farden factors are made. On the other hand it would reflect the fact that while the applicant is not without fault, his actions do not justify the degree to which the boys have rejected him.

There will therefore be an order as follows:



1. The applicant shall no longer be responsible to pay support for the child Paul.



2. The applicant shall continue to pay support for the child Mark at the amount currently being paid under the divorce judgment until Mark has completed one post-secondary educational degree.



3. The applicant shall pay support for the child Celina at the amount currently being paid under the divorce judgment.



4. Counsel may arrange through my secretary to speak to the issue of costs by telephone conference call or may make written submissions.

lv
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Old 07-11-2006, 02:32 PM
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Thanks LV, you're the best
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Old 07-20-2006, 07:13 PM
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Default Interesting

Very interesting cases.

I just think the child support payment period should be terminated at age 18 for children, regardless if they are in school or not. The more studious children will get more education by age 18, and the children that are not motivated to furthering their education, will get what is equivalent to their effort. 18 years of support is very generous and no more is needed.

After all, at age 18, they are an adult. As such they should accept full accountability for their position in life. Either the person is an adult or they are not an adult. The child support laws should be amended to clearly indicate the act applies only to a person below the age of 18 in all circumstanaces.
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