Case reference: Lewi v. Lewi, 2006 CanLII 15446 (ON CA)
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Family law — Support — Child support — Motion judge ordering adult children to contribute to their post-secondary education expenses out of their summer earnings — Children having substantial capital assets — Motion judge erring in failing to consider extent to which children should be expected to contribute to their own education expenses out of those capital assets — Federal Child Support Guidelines, S.O.R./97-175, ss. 3(2)(b), 7.
The mother brought an application to vary a child support order, seeking an increased contribution from the father for expenses pursuant to s. 7 of the Federal Child Support Guidelines, including post-education expenses for undergraduate and graduate programs of study for the parties’ two sons. D was living at home while attending university at the time of the motion. B was still attending high school, but it was anticipated that he would be attending university away from home starting in the fall of 2005. Both children had substantial capital assets as a result of gifts from their paternal grandfather. The father took the position that these funds should be used to pay for post-secondary education expenses before the court ordered any parental contribution. The motion judge ordered the father to pay the table amount of child support of $2,094 per month (based on his annual income of $182,000) while both children were living at home, reduced while B was living away from home and attending school. She also determined that each child should contribute to his university education out of his summer employment earnings to the extent of the greater of actual earnings minus $2,000 or $1,000 before first year, rising to the greater of actual earnings minus $2,000 or $4,000 before fourth year. She made no reference to the boys’ capital assets. She ordered the parties to pay the balance of undergraduate post-secondary expenses in proportion to their incomes, with the result that the father was to pay 77 per cent of these expenses and the mother was to pay 23 per cent. The father appealed, asking the court to reduce the amount of child support that he was to pay and to order that the children use their own funds for their post- secondary education. The mother cross-appealed, seeking an order for unreduced child support and increased support for s. 7 expenses.
Held, the appeal should be allowed in part; the cross-appeal should be dismissed.
Per Juriansz J.A. (Blair J.A. concurring): This case raised the issue of children’s contribution to post-secondary education expenses under both s. 7 (for D) and s. 3(2)(b) (for B). Both s. 7 and s. 3(2)(b) require the court to consider whether a child of majority age is able to make a contribution to his or her post-secondary expenses. Section 3(2)(b) requires the court to have regard to the “means” of the child. Both capital and income are encompassed by the term “means”. The motion judge erred in failing to require the children to make a contribution to their post-secondary expenses out of their capital. The court, in order to exercise its discretion properly under either s. 3(2)(b) or s. 7, when parties dispute the amount of contribution expected of a child, requires the same kind of information regarding the needs of the child and the means of the child and parents. Nor would the contribution the child is expected to make and the support the parent is obliged to provide necessarily be different under the two provisions. There is nothing in the Guidelines that implies that children of majority age with capital assets should be required to contribute all of their assets towards their post- secondary education before their parents are called upon to provide support or that such children should not have to make any contribution out of capital. [page322] There is no greater expectation for the child’s contribution under s. 7 than under s. 3(2)(b). The amount of child support that a parent is ordered to pay should be determined, as a general rule, on the expectation that a child with means will contribute something from those means towards his or her post-secondary school education. The extent of the contribution expected depends on the circumstances of the case. As the motion judge did not consider the extent to which the children should be expected to contribute to their own education expenses out of their capital assets, her disposition could not stand.
The motion judge did not err by concluding that it would be inappropriate to apply the Guidelines to B as if he were a minor because he would be attending university out of town. She was entitled to exercise her discretion to reduce table support for B in ordering, in total, an amount she considered appropriate having regard to the criteria in s. 3(2)(b).
Per Gillese J.A. (dissenting): The motion judge did not determine B’s contribution pursuant to s. 3(2)(b) of the Guidelines. Based on the structure and wording of s. 3, the presumptive amount of child support for an adult child of the marriage is the same as that for a child under the age of majority. Section 3(2)(b) provides that the court may order a different amount for an adult child of the marriage only if the “approach” (that is, the approach set out in s. 3(1) of the Guidelines — setting child support for living expenses based on the table and setting child support for special expenses based on s. 7) is inappropriate. If it is, the court may order the amount it considers appropriate based on a consideration of the “condition, means, needs and other circumstances of the child” and the financial ability of each parent to contribute to the child’s support. Similarly, the court is to follow the approach to special or extraordinary expenses provided by s. 7 unless that approach is inappropriate. Only if the approach mandated by s. 7 is inappropriate is the court to determine an appropriate amount for these expenses, for an adult child of the marriage, based on s. 3(2)(b). It is not the case that the information required for a s. 7 determination is the same as that required for s. 3(2)(b). The inquiry under s. 7 is more limited in nature than is the inquiry under s. 3(2)(b), and the discretionary nature of the amount of support ordered under s. 7 is far more restricted than the discretion conferred under s. 3(2)(b). Collapsing s. 7 into s. 3(2)(b) ignores the fact that the ultimate recipient of the funds is different under the two sections. It results in two children in the same family being subject to different legislative provisions in respect of post- secondary education expenses solely because one child lives away from home while attending university. As s. 7 applies to post-secondary education expenses, the fact that he attends university away from home is insufficient to make the approach mandated by s. 7 to the setting of such expenses inappropriate, such that recourse to s. 3(2)(b) is necessary. It should be assumed that the motion judge acted pursuant to s. 3(2)(a) in relation to both D and B.
An adult child of the marriage has the obligation to contribute reasonably to his or her post-secondary education expenses. However, this obligation does not rise to the level of requiring the child to pay for all of his or her post- secondary education expenses where the parents have the ability to contribute to these expenses.
*source: Canlii
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