Section 7 Expenses and Post-Secondary Expenses

Penn v Penn, 2014 ONSC 6321

This case addresses the issue of section 7 expenses and post-secondary expenses.

Background

The parties were married on July 27, 1984, and separated on January 27, 2008. There are two children of the marriage. One of the children of the marriage completed a Bachelor’s Degree at York University. Thereafter, the child commenced attending George Washington University in Washington, D.C. in pursuit of a Master’s Degree. The other child was attending Guelph University.

Analysis

The Court first addressed its attention to the issue of the Table amount of child support. The Court found, at paragraph 13, that the parties agreed in their Minutes of Settlement that the Respondent would continue to pay child support in

An amount equal to the Table amount for one child plus one-half of the difference between the Table amount for one child and the Table amount for two until neither child qualifies as a ‘child of the marriage’. There is no doubt that [child #2] remains a child of the marriage. This was the parties’ deal. This is what they agreed to.

The Court found that the parties clearly contemplated child #2 attending university and chose not to suspend ongoing Table amount of child support if the child lived away from home to attend university. Further, in Willick v Willick, 1994 CarswellSask 48, the Supreme Court of Canada found that “if the matter which is relied on as constituting a change was known at the relevant time, it cannot be relied on as the basis for variation”.

The Court then turned its attention to address the issue of whether child #1, who had completed her first undergraduate degree, remained a child of the marriage. The issue, therefore, was not “her attendance at a school in the United States, but rather her enrollment in a Masters Program” (paragraph 18). The Court then provided that the definition of “child of the marriage” in accordance with section 2(1) of the Divorce Act means a child of two spouses or former spouses, who, at the material time,

  1. Is under the age of majority and who has not withdrawn form their charge, or
  2. 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.

The Court then cited Renoug v Bertol-Renoug, 2004 CarswellAlta 1630, which held at paragraph 42:

It appears from all of the foregoing that if the child’s plan is rational and attainable, the child appears to continue to be economically dependent in fact, and the parents would have encouraged the educational goals if they had stayed together, the child is likely to be found to continue to be a child of the marriage in pursuing a second or even third degree. However, as a child becomes older and better educated, the onus of proving dependency grows heavier.

The Court further held that “There is no automatic cut-off of dependency after one degree or four years of education, and it is the purpose, not the number, of degrees that is relevant” (paragraph 26). Further, as provided for in Martell v Height:

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. In making this determination the trial judge cannot be blind to prevailing social and economic conditions. A bachelor’s degree no longer assures self-sufficiency.

A Court should consider the financial circumstances of the family, the child’s educational and career plans, the child’s age, the child’s academic performance, the family’s educational expectations, the parent’s involvement in the decision making process, and the extent to which the program prepares the child to become financially independent. After consideration of these factors and the Court found that child #1 continued to be a child of the marriage as she had not withdrawn from parental control. Consequently, the Court ordered what was the equivalent to proportional sharing of the section 7 expenses, including the costs associated with child #1’s pursuit of a Masters Degree at George Washington University.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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