Educational support an emerging family law issue: Khan
By Tony Poland, AdvocateDaily.com Associate Editor
Determining who is responsible for paying for a grown child’s education is becoming an increasingly prevalent issue in family law, says Oakville family lawyer and mediator Robina Khan.
“I wouldn’t be surprised if it continues to be an emerging question that the courts are faced with,” she tells AdvocateDaily.com.
Referring to a recent Alberta Court of Appeal judgment, Khan says a parent’s responsibility for education can be murky.
According to the appeal of the chambers judge’s decision, the daughter of a divorced couple left home to attend university but quit after two years without completing the program.
She moved in with her boyfriend, but a year later, at the age of 22, she returned home to live with her mother and enrolled in a career college program.
The young woman got a part-time job and obtained a student loan and a grant to pay for her studies.
However, “when her mother learned about her daughter’s student loan, she took steps to cancel it” and paid the tuition herself, the court was told.
According to the judgment, the woman’s father, who had financially assisted with her previous post-secondary schooling, refused to contribute to the career college program.
Her mother argued that a child shouldn’t have to obtain a student loan if parents have the financial resources to pay.
However, the chambers judge ruled the daughter was no longer a “child of the marriage” under the Divorce Act, placing emphasis on her “initiative in obtaining the student loan and the grant, and in arranging for employment income during her studies.” The appeal court agreed.
Khan says the case illustrates the “complex landscape” in family law and notes there is “no hard age” as to when a child is considered too old to receive court-mandated financial support.
“As a starting point, an adult child may be a ‘child of the marriage’ when they are over the age of majority and unable to withdraw from parental care, by reason of illness, disability, or some other cause such as post-secondary education,” she says.
Khan says she finds educational support to be a common issue she deals with in her practice.
“If the child is enrolled in postsecondary education, the question is: are they entitled to support, and if so, to what extent?” she says. “Whether the child is 21 or 25, every case is fact-specific.”
The judgment is an example of a case where “a list of legal factors applied to one specific set of facts can result in a different outcome when compared to another case that may seem similar, but different in some of its facts,” Khan says.
“Such is the nature of our common law system,” she says. “As these cases come before our judges, they continue to analyze each case based on its specific facts and they continue to build and expand upon the body of law that we can draw on to try to make future decisions.”
Khan says it can muddy the waters if children move out for periods of time but then return home to attend school. The responsibility to pay for their education can become unclear depending on whether the child decides to attend school on a full- or part-time basis.
"Sometimes we look to the resources the child may have available to them to determine whether it is appropriate to expect the child to contribute, at least in part, to their own education.
“When advising a client, I start at the beginning with each file to understand whether the adult child is self-sufficient or self-supporting, and if not, why not? Then, I compare the specific facts of the child and the parents to the precedents set out by our courts to provide my best assessment with the information I am given,” she says.