Canada’s federal Divorce Act stipulates that parents must provide support to unmarried children enrolled in full-time post-secondary education.
Ontario and British Columbia’s family law acts have similar provisions. Traditionally, Ontario and B.C. courts have interpreted the legislation to mean a four-year undergraduate degree, with support terminating at graduation.
In Alberta, however, the child does not necessarily have to be a student full-time. “It’s not limited to a four-year undergraduate degree,” explains lawyer Marie Gordon. “It might be a two-year college diploma, or a trade school certificate.”
But are divorced parents obligated to support a child who wants to pursue a master’s degree, go to law school, become a doctor or a midwife, or do a PhD in cultural and film studies?
In short, no one knows.
Alberta’s Family Law Act provides some clarity by stipulating that support for a child in full-time postsecondary education ends the day before the child turns 23. In Ontario and British Columbia, though, that endpoint isn’t as clear.
“There are no specific cutoffs as to how many postsecondary degrees a parent must support,” says Toronto-based family lawyer Ron Shulman. While Ontario courts typically won’t order support after the first degree, he notes, there have been cases where a court might determine that it makes sense to do so.
In making that determination, judges routinely consider a comprehensive list of considerations outlined in a 1993 B.C. court decision, Farden v. Farden, to determine whether further support is warranted. These factors include a child’s age, previous academic performance, career plans and ability to contribute financially to his education, as well as any plans the parents made for their child’s education, especially while they were together.
The situation is similar in B.C., says Victoria-based lawyer Karina Sacca, who finds it “frustrating and infuriating” that parents who remain married do not have the same obligation to support their children through higher education.
Parents’ own educational attainment and circumstances may also be considered in a subset of cases. Courts may require contributions to graduate education, says Edmonton-based family lawyer Marie Gordon, in circumstances where parents are wealthy or hold advanced or professional degrees.
For parents worried about how they’ll fund their offspring’s four years at Harvard Medical School, Shulman notes that even where a court decides that a child’s educational plan is reasonable and support is warranted, it has broad discretion on the amount. Further, it may take into account parents’ financial circumstances, as well as the Farden factors.
Given these uncertainties and coupled with skyrocketing tuition costs, separated and divorced parents have even more reason to start saving as early and as much as possible for their children’s post-secondary careers.