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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 11-16-2012, 03:01 PM
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Default Children's Post Secondary Education, Divorce and the law

Can someone provide wording in legislation or how the law requires divorced parents to cover the cost of post secondary education? I don't understand how the children of married parents are not automatically entitled to their parents covering the cost of post secondary education but the children of divorced parents are? I can understand that this may be a matter of a separation / divorce agreement but is it law?
My question isn't whether one should or shouldn't based on morals or values but what the law says. How does the law account for parents that are not in a financial position to support post secondary education? What if a child enrolls at Harvard and the parents each earn $30K a year?

Thanks
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Old 11-16-2012, 03:30 PM
HammerDad HammerDad is offline
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Here is the law:

Quote:
7.
Quote:
(1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:
(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities. O. Reg. 391/97, s. 7 (1); O. Reg. 446/01, s. 2.
Definition, “extraordinary expenses”
(1.1) For the purposes of clauses (1) (d) and (f),
“extraordinary expenses” means
(a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent’s or spouse’s income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or
(b) where clause (a) is not applicable, expenses that the court considers are extraordinary taking into account,
(i) the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child,
(iv) the overall cost of the programs and activities, and
(v) any other similar factors that the court considers relevant. O. Reg. 102/06, s. 1.
Sharing of expense
(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. O. Reg. 391/97, s. 7 (2).
Subsidies, tax deductions, etc.
(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. O. Reg. 159/07, s. 2.
The way it works now is the post secondary is split with the child assuming 1/3 of the costs related to their education and the parents splitting the remaining 2/3rds between them in proportion of their incomes.

As for Harvard etc. A parent is only obligated to cover reasonable costs for the childs education. If the local university offers the course, but the kid wants to go to Yale, and doesn't have some extraordinary reason for the need to go to Yale, the parent only has to cover the cost of what it would cost to go to the local university. The judges decision on whether or not Harvard/Yale etc are reasonable would be based off of the child's reasoning for the need to go to such an expensive school and the parents ability to cover the costs. In your Harvard example, with incomes of $30k, unless Harvard was the only school that offers the course the kid is in and the child is extremely gifted, and the child has managed to fund a good portion of the costs themselves, I can't see a judge finding that it is reasonable that the child go there as there are other more reasonable alternatives.

As for the moral blah.....it is what it is.....I started contributing to my D7's RESP the day she was born to hopefully mitigate this cost.
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Old 11-16-2012, 04:24 PM
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Thanks Hammerdad!
When my STBX and I had our first child she called me on the day she was to return to work part time and told me she had quit and decided she was going stay home even though we had arranged our work schedules to negate the need for daycare. Talk about a hit to the family income. I was concerned about our ability to put money aside for our children's education to which my father in law told us not to worry about education because they would look after putting money aside. True to their word they did but during mediation I was told the RESPs were not on the table for discussion as they are in my MILs name and is her financial business. I respect that but I'm feeling vulnerable about being able to come up with future education costs on top of CS and finding a new household. If my father in law were still alive I'm certain he'd honor the commitment but I'm not so sure my MIL and STBX will.
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Old 11-16-2012, 04:30 PM
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MIL might be trying to protect the children's interests. Depending upon how the children's education fund is set up (not everyone contributes to RESPs) they probably just want to keep funds separate and unencumbered by future litigation. Your inlaws might have changed their mind on how they are going to have their estate distributed. I think you should proceed in making a plan that doesn't assume there is any money coming from the inlaws.
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Old 11-16-2012, 05:42 PM
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I would never have asked for my in laws promise in writing and understand it is my MIL's funds to control. I lived up to providing and taking care of my family and continue to do so during the separation process (she asked for the separation). I was raised that you own up to your words and promises. So perhaps it's meaningless in the eyes of the law but I've asked that our separation agreement acknowledge that the kids would (if possible) draw from the MILs RESP as was intended / promised. I haven't heard back either way but it will give me an idea of whether my STBX is honorable (my perception of course lol).
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Old 11-16-2012, 05:58 PM
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I know of someone who had the misfortune of having the ex go bankrupt and the trustee seized the RESP. I think bankruptcy laws have changed (hope so) in recent years. Before I paid into one I would definitely check out current legislation.
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Old 11-16-2012, 06:51 PM
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Thanks Arabian. I will definitely do that as I'm certain finances will be difficult for the next 3 - 5 years.
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Old 11-16-2012, 07:02 PM
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Arabian is correct. I am in Ontario and have a bankruptcy declared in the past 3 years. They made us cash out each of the kids' RESPs (one of the plans was over 7 years old) and use them to pay down creditors. The logic is that you cannot save and run up bills at the same time.

Just a FYI.
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Old 11-17-2012, 03:31 AM
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So having parents keep your kid's educational money isn't a bad idea - just make sure they have provisions for allocation in their will. Maybe someone else has another idea on this?

If you were to keep a separate account and then got divorced many years later it would become an asset of the matrimonial estate. I guess the thing to do is to agree early on in your relationship (before you hate each other) to put the money in a one-way account somewhere (trusted friend or relative). Who knows. Lawyers would probably have a way to hack into that as well.
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Old 11-17-2012, 03:43 PM
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Quote:
Originally Posted by Sound11 View Post
I would never have asked for my in laws promise in writing and understand it is my MIL's funds to control. I lived up to providing and taking care of my family and continue to do so during the separation process (she asked for the separation). I was raised that you own up to your words and promises. So perhaps it's meaningless in the eyes of the law but I've asked that our separation agreement acknowledge that the kids would (if possible) draw from the MILs RESP as was intended / promised. I haven't heard back either way but it will give me an idea of whether my STBX is honorable (my perception of course lol).

Actually, even your inlaws contributed to the RESP, you can use that your children are the beneficiary that mean the GRANT portion belong only to your children as your inlaw or ex can not use that part.

your inlaws can only claim their contribution and the interest is even debatable as it counts as Education assistance Program(EAP)

Basically when it is time to withdraw you can only withdraw a maximum of 5k for the first 13 weeks and using the formulla,it is never amounted to only grant. It will be a mix of grant and interest. There is no limit on withdrawing the contributions itself.

After 13 weeks there is no limit on the withdraw and the child can get the remaining of the Grant.

If the RESP was not use for the child, the inLaws would have to reimbourse the grant back to the goverment.

PS: grant portion limit per child is 7,200
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