The Nova Scotia Supreme Court (Family Division) has recently ordered two divorced parents to split the cost of their almost 26 year old daughter’s dental hygiene degree in a decision where the mother worked three jobs to help her daughter through school and the father, who is the proud owner of a new F-150 truck, a new ATV and a motorbike, tried to claim he was too broke to assist her.[1] The main issue was whether or not the daughter (who will shortly turn 26) was a dependent child during her 18-month dental hygiene program. The court confirmed that she was a dependent child during this period.

Under the Parenting and Support Act[2] a dependent child, by definition[3], means a child who is “under the age of majority or, although over the age of majority, is unable, by reason of illness, disability or other cause, to withdraw from the charge of the parents or the guardians or obtain the necessaries of life”. The wording of “other cause” is what the court had to consider in order to determine whether the daughter was unable to withdraw from the charge of her parents. The court found that educational pursuits can be considered another cause[4] for the purposes of this definition.[5]

Various cases have set out factors to consider when determining whether a child is eligible for support while pursuing a post-secondary education.[6] The factors apply equally to post-graduate programs, although the older a child and the longer they study, the more closely a court will scrutinize their program, their efforts to support themselves, and their progress.[7]

The Court found that without a student loan, the daughter relied on her mother for support. The father conceded that without the mother’s support, his daughter would not have been able to take the program, however, he characterized this as her choice. The court disagreed and stated that the daughter was a dependent child for that 18-month period because both parents were able to support their daughter financially and should have provided support. Their daughter was not qualified in a field where she could earn a living wage until she completed the program. She could not finance herself, either through savings or loans. If her father had co-signed her student loan, then she would have been able to afford the program and would have placed the burden of repaying it on her, however, the father had other priorities.

The father was remarried, with a two-income household and cashed an RRSP in 2019 to make a down payment on a second (rental) property, which was his priority at that time. His rental income was $400/month from his step-daughter and if he had co-signed his daughter’s student loan, the court said this would have affected his debt ratio and left him unable to finance that purchase.

Parents need to be cognizant and remember that even after your child has left the nest, they may still depend on you for quite some time. This case is one of many where this legal issue of “dependent children” occurs.

Lawyers at BOYNECLARKE LLP can help you navigate these legal issues. To speak with a member of our Family Law practice, contact Terrance G. Sheppard at tsheppard@boyneclarke.ca. 

[1] Dove v MacIntyre, 2021 NSSC 1.

[2] Parenting and Support Act, RSNS 1989, c 160.

[3] Ibid at section 2(c).

[4] Penney v Simmons, 2016 NSSC 277.

[5] Supra note 1 at para 22.

[6] Supra note 4 at para 14.

[7] Supra note 4 at para 14.