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-   -   RESP's and post secondary education (http://www.ottawadivorce.com/forum/f5/resps-post-secondary-education-17541/)

jeg701 05-11-2014 07:40 PM

RESP's and post secondary education
 
My X and I both have RESP's for our children. During our divorce they were never equalized (even though we suggested that to her LLB).
Mine is substantially bigger than hers(112,000 vs 25,000)
Our agreement is silent on who's should be used first or the percentages that should come of of mine or hers to pay for our daughters post secondary education. There is also no language in our agreement like "any and all"

Her position is that 1) I should continue to pay her child support while my daughter is at university as she will have ongoing expenses maintaining the home. I understand that its case law. although someplace I read that I could petition for a reduction in my support base on the fact that my daughter would be in residience.

Position 2: That all of her post secondary expenses should come out of the RESP that was left in my name after the divorce before she touch's hers.

My understanding of this is that post secondary expenses should be paid out proportional to income and thus both need to pay. and that if she wanted 1/2 of the RESP it should have been divided at the time of the divorce settlement.

Thus the math would go like this. I pay 60 % and she pays 40% (section 7 breakdown) and it makes no difference were the money comes from.
So if my daughter expenses are 15,000 per year I would pay 9000 and she would pay 6000. Her 6000 would not come out of my RESP.

Just need some clarity.
I pay all my money to her by post dated cheques and section 7 are paid when I get a bill. I've never been late for argued because its for the kids but this just doesn't feel right.

I had also suggested that we use ALL of my RESP if she would agree to not have me pay Child support for my daughter while she attended university.
For the 2 children I pay 1600 per month and If I only paid for one she would still get approx 1000.00. I thought it a win win for all concerned but its not and thus the question.

Thought please?

J

rockscan 05-11-2014 07:50 PM

My partner and his ex have an resp they opened while married. He opened separate resp with some of his settlement money. Its in his agreement that a portion of the post divorce resp comes off the top of their combined portion (after the contribution of the child which lawyer said is 1/3) then the remaining is split so he can use his resp he started for his portion. But in his case he started it after the divorce with the other included in joint assets at time of separation. Also be mindful of the other kids. You cant take all the money out now leaving nothing for the others.

As for cs, his lawyer said he doesnt pay but others here have said youre supposed to. Might be worth taking advantage of the free half hour consultation with a lawyer just to be sure.

rockscan 05-11-2014 07:52 PM

Does your daughter not make a contribution to her post sec costs at all?

jeg701 05-11-2014 07:54 PM

No she doesn't.
the bottom line for me is that there is lots there for both kids.
Not an issue for me really

stripes 05-11-2014 11:01 PM

My understanding (which could be wrong, as I am not a lawyer but a random stranger on the internet) is that PSE costs are usually divided as follows:
1/3 is the responsibility of the child (through loans, part-time work, or savings
2/3 are split proportionate to income (that is, 2/3 of the cost is a S7 expense). Each parent can use the RESP he or she has been building as his/her contribution to PSE. So your ex needs to spend down hers, not just have everything come out of yours.

I believe that it's legitimate for her to expect you to pay some CS, as she still has the expense of maintaining the home, even if the kids are living elsewhere during the school year, but it is reasonable for this CS to be reduced, as she will not have the operating costs of having the kid in the home (groceries, utilities, etc will be less).

jeg701 05-11-2014 11:05 PM

Thanks
Does she have to agree to a reduction and if she does not what options would I have?

HammerDad 05-12-2014 10:50 AM

Quote:

Originally Posted by jeg701 (Post 170537)
Thanks
Does she have to agree to a reduction and if she does not what options would I have?

She doesn't have to agree. You can send an offer to her to reduce c/s as most the child's expenses have been covered through your payments to their education (i.e housing and meal plan etc). That you understand that there is still some cost to maintain their residence, thus should not be eliminated. But it is your position that paying full c/s and university costs is essentially paying for the child's needs twice, and as such a reduction is reasonable. Offer to pay around 1/4 to 1/3 of table c/s. Should she refuse, you will have to file a motion in court requesting the reduction. It should be a fairly easy case, but it isn't always black and white, so no guarantees.

As for RESP's, it is my understanding that each parent owns their respective RESP's, they don't belong to the child. That your RESP was part of the matrimonial property muddies the waters a bit. You can likely figure out the value as at the date of separation, and she would be entitled to 1/2 at that date (it is likely cheaper and easier to do it that way then fight it in court). With $140k, plus the kids share, there isn't likely going to be a need to be out of pocket on this. So it is really just a matter of splitting off the ex's portion, and paying proportionally from there.

jeg701 05-12-2014 11:46 AM

Thanks, very helpful
If I was to file a motion I suspect I can do it myself but were would I find the forms?

ottawa_divorce_dad 05-20-2014 11:53 AM

Why not do it this way ...

1. Identify what the balance of the RESP was at the time of separation / divorce - use these funds first - these would come out of your account i imagine with mom not contributing anything new at this point because your contributions include hers from before separation. If you wish to be absolutely accurate, you could also add to this value the growth in that balance after separation.

2. Once the pre-separation funds are exhausted, both mom and dad pay their proportional share from their respective accounts.

MrToronto 05-20-2014 01:26 PM

If an adult child is living and going to school away the CS is 5 months for the school year (summer vaction, christmas march break e.t.c). That 5 months support is either divided by 12 mo. or send 5 checks.and it's usually 1/3 proportional sharing although in your case there's lots of money.You also want the child to transfer unused Tuition and Books tax credits to either MOM or DADIf not in any agreement for a termination date for CS (one degree or 23 yrs old) you better start thinking about it because 120k won't be enough for 2 kids with degree after degree.I think the case Lewi vs. Lewi had substantial RESP's for kids and it was resolved on who pays what, check that out on CANLL and you'll have your answer

Lewi v. Lewi, 2006 CanLII 15446 (ON CA), <http://canlii.ca/t/1n7f2> retrieved on 2014-05-20


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