• by Christina Hinds
Originally published in the OFLM 2024-07 edition
Overview
Many children choose to take a break between graduating from high school and starting post-secondary education. This break is often referred to as a “gap year.” Rodriguez v. Bell (2024 ONCJ 302) is a recent decision wherein the court determined whether an adult child was entitled to child support during a gap year. Justice Sherr determined that the child was not entitled to child support during the gap year but held that the child’s entitlement to child support was “revived” when the child started post-secondary education.
Facts
In Rodriguez v. Bell, the father paid child support pursuant to a 2012 final order. The child graduated from high school in June 2022. The child did not attend school from June 2022 until September 2023, at which point she started post-secondary education. The father brought a motion to change seeking to terminate child support as of June 2022 when the child graduated from high school and was 18 years old.
The mother argued that the child remained entitled to support after graduating from high school because she was unable to withdraw from the charge of her parents. In the alternative, the mother argued that child support should be revived when she returned to school in September 2023.
Entitlement of an adult child to support
Subsection 31(c) of the Family Law Act sets out that a parent is obligated to provide support for a child who is unable to withdraw from parental charge (at para. 18). Referring to Rebenchuk v. Rebenchuk (2007 MBCA 22), Justice Sherr noted that the onus of establishing an adult child’s entitlement to support is on the party seeking support (at para. 19).
At paragraph 20, Justice Sherr referred to Nicholas Bala’s and John Abrams’ recent paper, Child Support for Adult Children in Canada: When Does Childhood End?:
Generally, if an adult child without disabilities ceases to attend school, and has only vague plans to return, the support obligation ends. However, if the child leaves school for a year or less, where there is a clear plan to return, the support obligation may be continued during that period, especially if the child is earning income and the child’s saving from that period may reduce later parental obligations. If the support obligation has ended and the period out of school is less than two years, the courts will usually allow the support obligation to be reinstated, and in some cases, reinstate support when a child has been out of school for up to three years. (emphasis added)
The three approaches taken by courts
Justice Sherr considered the three approaches courts have taken when a child takes a break or “gap year” between graduation from high school and starting post-secondary education.
- Child support ordered during the gap year
Some courts have ordered that child support will continue during a child’s break between high school and post-secondary school (at para. 21) including Justice Charney in Edwards v. Edwards (2021 ONSC 1550) and Justice Trousdale in Leonard v. Leonard (2019 ONSC 4848).
In Edwards, Justice Charney noted that there are many cases where courts have found that a child taking a “gap year” may remain entitled to child support and that other cases have found that a child may require a “modest transition period” after completing an educational program to search for employment (at paras. 37 & 38). Justice Charney explained that:
Apart from these brief periods, however, and in the absence of “illness or other disability”, courts generally require attendance at school for an adult child to maintain his or her dependant status. Adult children cannot simply choose to remain economically dependant on a parent, they must be "unable" to withdraw from the parent's charge. Nor can adult children accumulate multiple gap years to forestall their independence. (Edwards, at para. 39).
In Edwards, Justice Charney found that both children should be permitted to take a gap year to “figure out” what they want to do (at para. 44). However, an adult child cannot indefinitely postpone starting post-secondary education and remain entitled to child support (at para. 45). One of the children attended a post-secondary education following his gap year but did not finish the program. Justice Charney held that the child was entitled to child support during his gap year and while attending the post-secondary program. The second child did not attend post-secondary education following his gap year. Justice Charney held that his eligibility for child support ended following his gap year. As both children had plans to start post-secondary education, Justice Charney stated that this decision was without prejudice to the mother’s right to apply for child support when the children start school (at para. 49).
In Leonard, Justice Trousdale found that the child “formulated a reasonable plan” for her post-secondary education (at para. 60). The child discussed her plans to take a year off from school and both parents were supportive. Aside from two short trips, the child resided full-time with the mother. She also worked during the gap year and Justice Trousdale noted that the child would be expected to use some of her earnings toward the cost of her post-secondary education.
The child remained dependant on the mother during the gap year. At paragraph 63, Justice Trousdale stated:
[i]f the father is not required to pay any child support to the mother during this period as requested by the father, the mother will be obliged to bear the burden of those expenses even though the mother makes substantially less income than the father.
- Child support terminated/suspended during gap year and revived upon return to school
Some courts have terminated or suspended child support for adult children when they stop attending full-time school and revive child support when they return to school (at para. 22) including Stephenson v. Thomas (2014 ONCJ 669) and Haley v. Haley (2008 CanLII 2607 (ON SC)).
In Stephenson, the child took a 14-month break from school. At paragraph 32, Justice Sherr considered that the child was still young and had a “reasonable and practical education plan that is supported by both parents” and that the child had never been independent.
In Haley, Justice Pazaratz permitted child support to be reinstated for a 21-year-old child following a two-year gap. During the two-year period when the child was not in school, he lived on his own and worked various low paying jobs. At paragraph 33, Justice Pazaratz found that the child “went through a relatively short period of trying to organize his life and devise a realistic plan for the future.”
- Discretionary child support amount
The court does not have to make a “binary choice” between approach number one and approach number two. At paragraph 24, Justice Sherr explained that the court has the discretion to “determine that the guidelines approach is inappropriate and order a different amount if it finds the adult child remains eligible for support during a gap year.”
The court’s authority to do this is set out in subsection 3(2)(b) of the Child Support Guidelines which states the following:
(2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child is,
(a) the amount determined by applying these guidelines as if the child were under the age of majority; or
(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child. (emphasis added)
Decision
Justice Sherr held that the fairest approach in the circumstances was approach number two (at para. 25). Justice Sherr suspended child support during the child’s 14-month gap and reinstated child support when the child started post-secondary school.
Justice Sherr noted that at the time of the child’s high school graduation, she did not meet the eligibility criteria set out in subsection 31(1) of the Family Law Act. She was not a minor and she was not enrolled in a full-time education program (at para. 25)
At paragraph 25, Justice Sherr noted that the child took time off from school to “decompress from her studies and travel the world.” His Honour referred to this as an adult choice.
The father did not approve of the child’s plans and did not agree to contribute to her travel costs. The child did not work during her 14-month break from school. The father did not agree with the child’s choices.
Both parents had limited financial means. The father earned a modest income and the mother had not worked for several years. At paragraph 25, Justice Sherr found that “it is not fair, given this family’s economic circumstances, to require the father to pay child support for these 14 months when the adult daughter was not in school, traveling the world, and not contributing anything towards her own support.”
Sherr J. also held that the 14-month gap after high school was not unusual, “as young people often take a pause to consider their future”. He further noted that the child’s education path was a reasonable one and that it should be encouraged by her parents.
Conclusion
There are three approaches that courts have taken when dealing with child support during gap years:
- Continuing child support throughout the gap year;
- Suspending/terminating child support during the gap year and reinstating/reviving child support when the child returns to school; and
- Ordering child support at an amount that it considers appropriate.
However, lawyers and clients should keep in mind the following:
- The onus of establishing an adult child’s entitlement to support is on the party seeking support.
- A parent’s approval or support of the child’s plans to take a gap year may be considered by the court.
- The court will consider whether the child’s education plan is reasonable or practical.
- The court will consider the financial means of the parents.
- The court will consider whether the child remained dependant on the parent or parents during the gap year/break from school.