child support while child is in university

[verytiredmother]

I am representing myself and we are very close to a settlement. My ex's lawyer wants to put in the agreement that my ex will cease paying child support while my children (two teenagers still at home) are in residence. She says this is the norm and it is not negotiable. As part of the agreement, I have given up spousal support. Although when we separated I was making $13,000 part time, I have since started a business and last year made almost $40,000. My husband makes $110,000 a year and lives with his girlfriend, who makes close to the same (and is also separated, sharing custody with her children and remaining in the marital home). His lawyer says he can't afford to pay child support and residence. My ex abandoned the children, has not seen them for three years!! My ex has not paid section 7 expenses to date in the almost four years we have been separated, although he will start with the agreement. But unless my income improves, I will not be able to afford paying my share of my children's residence, tuition, etc. and transportation, and provide for the kids, maintain the home, etc. Do I have any legal standing to demand that he pays child support while the kids are in school full time on top of his share of education costs? My ex's lawyer is saying that my ex has no obligation under Ontario law to even pay child support after the children turn 18!, so essentially I should count myself lucky.

[AtALoss]

You do have very strong grounds to ask for the child support to continue post-secondary and spousal. I am going to get what you need and will post again.

[#1StepMom]

I think your ex's lawyer is just trying to scare you... to force you to settle on an agreement in favour of his client. The lawyer is doing this because he knows you don't have a lawyer and may not know all the laws. Whatever you do, before you sign anything, at the very least, talk to duty counsel. It is a free service for those self-representing. You are advised by the court to meet with duty counsel before any conference if you don't have a lawyer. (That is why they say to come one hour prior to your conference time.)

According to the guidelines, your ex is obligated to pay child support for:
a) minor children under the age of majority;
b) children over the age of majority who are still dependent on their parents due to disability, illness, or pursuit of higher education through full-time post-secondary studies.

Don't let them tell you anything other than that!

[AtALoss]

This is from the Family Law Act. It speaks for itself. There have been many questions regarding support of the children while in post secondary education. It IS a common practice that child support will continue through those years and is often granted to a maximum of 4 consecutive years. Now this gennerally means they continue straight from high school and would not continue if they pursue another degree etc. There also has been alot of controversy about a child switching programs midstream. I am of the opinion from what I have seen that that practice would be frowned upon as it is not a means for support to continue indefinately.

Give the following a read and then discuss this with your lawyer, I just feel that you are being expected to give up too much. the courts and lawyers have tables which they use to calculate support and are often consulted to keep things fair. It is when some start to get greedy and go above that things get messy. Your ex is legally responsible to his first family when it comes to support obliugations. Only if he were separating from a second family would his obligations get lots of consideration. But even at that his first obligation would still remain.


PART III
SUPPORT OBLIGATIONS

Definitions

29. In this Part,

“dependant” means a person to whom another has an obligation to provide support under this Part; (“personne à charge”)

“spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited,

(a) continuously for a period of not less than three years, or

(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child. (“conjoint”) R.S.O. 1990, c. F.3, s. 29; 1999, c. 6, s. 25 (2); 2005, c. 5, s. 27 (4-6); 2009, c. 11, s. 30.

Obligation of spouses for support

30. Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so. R.S.O. 1990, c. F.3, s. 30; 1999, c. 6, s. 25 (3); 2005, c. 5, s. 27 (7).

Obligation of parent to support child

31. (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so. R.S.O. 1990, c. F.3, s. 31 (1); 1997, c. 20, s. 2.

Idem

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control. R.S.O. 1990, c. F.3, s. 31 (2).



Determination of amount for support of spouses, parents

(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,

(a) the dependant’s and respondent’s current assets and means;

(b) the assets and means that the dependant and respondent are likely to have in the future;

(c) the dependant’s capacity to contribute to his or her own support;

(d) the respondent’s capacity to provide support;

(e) the dependant’s and respondent’s age and physical and mental health;

(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(h) any legal obligation of the respondent or dependant to provide support for another person;

(i) the desirability of the dependant or respondent remaining at home to care for a child;

(j) a contribution by the dependant to the realization of the respondent’s career potential;

(k) Repealed: 1997, c. 20, s. 3 (3).

(l) if the dependant is a spouse,

(i) the length of time the dependant and respondent cohabited,

(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,

(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,

(v.1) Repealed: 2005, c. 5, s. 27 (12).

(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and

(m) any other legal right of the dependant to support, other than out of public money. R.S.O. 1990, c. F.3, s. 33 (9); 1997, c. 20, s. 3 (2, 3); 1999, c. 6, s. 25 (6-9); 2005, c. 5, s. 27 (10-13).



Obligation of child to support parent

32. Every child who is not a minor has an obligation to provide support, in accordance with need, for his or her parent who has cared for or provided support for the child, to the extent that the child is capable of doing so. R.S.O. 1990, c. F.3, s. 32.

Order for support

33. (1) A court may, on application, order a person to provide support for his or her dependants and determine the amount of support. R.S.O. 1990, c. F.3, s. 33 (1).

Applicants

(2) An application for an order for the support of a dependant may be made by the dependant or the dependant’s parent. R.S.O. 1990, c. F.3, s. 33 (2).

[verytiredmother]

OMG Thank you all!! This was so helpful. They are trying to pressure me into accepting an agreement prior to the scheduled settlement conference. I am agreeing to a buy out for the spousal because it's the only way the kids can stay in the home. We have no family and the house represents a lot more to them than just a house, having been through much in life. But to cut child support while they're in school seemed way too much!

Thanks again.

[billm]

You sound like a very reasonable person. I hope you come to a settlement that you will be satisified with.

Originally Posted by verytiredmother

My ex's lawyer wants to put in the agreement that my ex will cease paying child support while my children (two teenagers still at home) are in residence. She says this is the norm and it is not negotiable.

You can't listen to your ex's lawyer, as first, of course everthing is negotiable, but practically it is a waste of time to pursue things that are unreasonable, effectivley making them 'not negotiable'. Child support (CS), is essentially non negotiable and I think that using the table amounts is simply the way to do it. However, given that the children are soon entering post secondary, things get complicated because I don't think divorce should dictate that suddenly one is forced to pay for thier own childs university when non divorced people do not have such controls. So you hopefully have an idea of what would have happened if you had stayed together with respect to how much you would have paid for your childrens education and then hopefully each pay that in proportion to your incomes. If the children live in residency, then CS should be reduced because your costs do go down but not in a big way, but at the least things like food and transportation are reduce and money spent toward education covers that portion of the childrens care.

I believe that CS should continue as the children still effectively live at home, even if they live at school, due to the large time students still come home (holidays, weekends, vacations) - though technically as they are adults you do not have an obligation to maintain a home for them, and in fact they may not need or really want it anymore.

Originally Posted by verytiredmother

As part of the agreement, I have given up spousal support. Although when we separated I was making $13,000 part time, I have since started a business and last year made almost $40,000.

Congratulations, it sounds like you have worked hard and had success. You should only give up SS for its own sake and not as a concession for other things. It seems SS ranges from not wanting it at all (and not caring about the income differences), all the way to wanting an even split of all money coming in (which sound way to much like marriage to me!). I hope you are satisfied with your decision.

Originally Posted by verytiredmother

My husband makes $110,000 a year and lives with his girlfriend, who makes close to the same

What his girlfiend makes should not be relevant to your or you children or your agreemnts with your ex.

Originally Posted by verytiredmother

His lawyer says he can't afford to pay child support and residence.

I don't like the concept of 'can't afford'. Child support is a table - you pay your part and that is that. How much you pay for the child's education should follow what was planned during the marriage. However, I don't think any parent should be forced to pay for their chlld's education. Married parents are not - it is a ludicrous idea to impose this on separated parents. I couldn't care less if my ex contributes or not - that is strictley between her and our kids - they will be adults and many many people do just fine without financial help from their parents. So how much he pays I would leave to him - though CS should continue until the end of the first degree attempt.

Originally Posted by verytiredmother

My ex abandoned the children, has not seen them for three years!!

This is not relevant to your agreement or negotiations.

Originally Posted by verytiredmother

My ex has not paid section 7 expenses to date in the almost four years we have been separated

He should pay them retroactively. Do you have all the infomration on the expenses? Does he disagree that they are section 7. This area is gray.

Originally Posted by verytiredmother

unless my income improves, I will not be able to afford paying my share of my children's residence, tuition, etc. and transportation, and provide for the kids, maintain the home, etc.

I am not sure what you mean by this, but to put it simply, you should pay 'your share' - support your children according to your income and the CS your receive.

One thing that comes to mind, that I have not read on this site, is the fairness of splitting all assetes 50/50 and then having each parent contribute toward the childrens education according to their income level. I wonder if this is fair in all cases as for example if the couple would have cashed in some equity or asset to pay for the education, then shouldn't the education costs after separation (and equal asset split of the matrimonial assets), also be shared not in proportion to income, but rather 50/50? For example, if the parents had planned to sell an asset to pay for the child's education, but they split just before the child goes to university, suddenly the greater income earner is saddled with more of the educations costs if the formula used is by income - not a fair thing. So for education costs I think what happens should be based on the realities of the family, rather than some one size fits all formula.

Originally Posted by verytiredmother

Do I have any legal standing to demand that he pays child support while the kids are in school full time on top of his share of education costs?

Yes, but as I said earlier, I believe that he should not be forced to pay education costs - that should be up to him. FYI, I plan to pay for my childrens education in exaclty the same manner as when I was married, which is to say that I will do what it takes and help them the best I can - I don't need or want some judge to tell me what my obligations are in that matter.

Good luck to you. Don't listen to the lawyers, read as much as you can here and other places, perhaps get a consult (but don't let that lawyer sell you an equally unfair load as your ex's lawyer is given), and be straight forward, persistent, and fair - I think you will probably know best what is fair more than anyone outside your familiy.

[AtALoss]

Great comments billm and thank you.

One of my great concerns with my divorce has been the cost of education. My ex and his lawyer have left this out of the picture. Whether divorced or still married cost of education is and has increased at an alarming rate. having said that I think no matter what our situation is we all want what is best for our children and to help them get as good a start as we can give them. Despite a COLA I do not expect that my child support to increase much or at all in the next 10 years to when my child is ready to got on. I have a small savings aside for this that will only make a dent. Hopefully I will be able to contribute more. Nothing has so far been asked of my ex.yes I resent this as has been left up to me alone. I hope and want when the time comes that her support I will be able to just turn that small amount over to her each month to help her meet her expenses. It would be nice to have her home during those years but I also know that there is the possibility that she may need to go away to school. But no matter what she chooses it will be expensive. Heck 2 years ago I went on to post graduate studies and the tuition alone at that time was $4400 for 18 months that was college never mind university. That amount doesnt even touch books and everything else. I shudder to think what that cost will be when she is ready. Had my ex and I would have still been together those costs will not change. As well he would have contributed to the pot, so I dont think it unreasonable to contribute now that we are getting divorced. Sorry to say this but I have to disagree strongly that her support should decrease. Mine I really dont care if it will and I expect it to. I also expect her to contribute but summer jobs are just that it is hard to go to school full time and earn a living at the same time I would rather see her concentrate on the school do well thus giving her a better start than I had when years ago I was in the place she will be.

[babybluetigger]

I have a question regarding child support, special expense (Tuition, books).
If you currently have an agreement that was drafted in 1991 and never been modified, but states that child support ends when the child is 21, HOWEVER, the child is 21 1/2 and currently attending 3rd year university (and hasn't attained her first degree yet), is there anything you can do to have child support continue, or re-file for child support, as to seeing he owns his own business?
My ex sent me a letter stating that his obligation of support is over due to the fact that agreement states it ends when she is 21, however she is still full time university and I have paid for the tuition costs in the amount of over $16,000.00 by myself while daughter has paid for books and gas. She has 3 terms left to go until she gets her 1st degree.
Any suggestions as to what my legal rights are or what I can do. I can't afford to pay for her housing and schooling on an income of $14,000.00 annually. Help!

[billm]

Originally Posted by babybluetigger

I have a question regarding child support, special expense (Tuition, books).
If you currently have an agreement that was drafted in 1991 and never been modified, but states that child support ends when the child is 21, HOWEVER, the child is 21 1/2 and currently attending 3rd year university (and hasn't attained her first degree yet), is there anything you can do to have child support continue, or re-file for child support, as to seeing he owns his own business?
My ex sent me a letter stating that his obligation of support is over due to the fact that agreement states it ends when she is 21, however she is still full time university and I have paid for the tuition costs in the amount of over $16,000.00 by myself while daughter has paid for books and gas. She has 3 terms left to go until she gets her 1st degree.
Any suggestions as to what my legal rights are or what I can do. I can't afford to pay for her housing and schooling on an income of $14,000.00 annually. Help!

Did you talk about this with her father? What does he say?

[babybluetigger]

I requested a copy of his 2008 tax return and my ex said he saw a lawyer and then my ex sent me a letter, it said: as per your request for my 08 return under terms of separation agreement, I am no longer required to provide info. His lawyer said the agreement is valid and binding...ceases at age 21" He also threatened, "if you continue to pursue, I will have courts conduct full financial review of childs income expenses and unreported income with a breakdown of educational costs and I will cease all current and future child support.
He closes with "As father to my daughter I realize an obligation to help support her in the cost of continuing her education of which I will do and providing 4200.00 tax free annual is adequate.