When a child attends post-secondary education, the obligation to pay child support increases and a portion of the post-secondary expenses can be added to the amount of required child support. For more on that, see this page. If a parent is paying both child support and spousal support, adding on a contribution to the relatively high costs of university or college can be a real financial squeeze.
When a court or arbitrator determines child and spousal support, section 38.1 of the Family Law Act and section 15.3(1) of the Divorce Act both say that child support is supposed to take precedence of spousal support. So, when both are calculated together, higher child support should mean less spousal support. In fact, the proper application of the Spousal Support Advisory Guidelines for when there are children reduces the income available for spousal support by the amount of child support being paid. However, unlike child support, spousal support is “discretionary”, which means the amount and duration are entirely up to the judge or family arbitrator. For more on spousal support, watch this video or listen to this podcast.
With all of that said, while many parents separate when their children are going to university or college, many do not. For parents who are going through separation while their child is going to university or college, the amount that they are paying for their child’s post-secondary education gets factored into the spousal support calculation. If the parents separated before their child started post-secondary education, then the cost of that education likely was not included in the calculation of support. That is what leads to the financial squeeze of paying for a child’s college or university expenses while still paying a big portion of income toward spousal support.
There is no automatic reduction of spousal support when a child starts post-secondary education – unless the court order or agreement says there is. Very few spousal support orders or agreements, especially those done while the children were young, consider the impact of post-secondary education on the ability to pay spousal support. To determine whether it is even possible to change the spousal support order, the parent had to first look at the support order or agreement.
Spousal support orders and agreements say whether spousal support can be changed and if so, when. It is not uncommon to have fixed term spousal support, which can only be changed in the most extreme circumstances before the term ends. There is a good chance that the post-secondary expenses will not be such an extreme circumstances. Other orders and agreements set specific events that can trigger a change to support. The post-secondary expenses may or may not be such an expense. If it is not, then there may be nothing the support paying parent can do. If the order or agreement does not specifically say when support can be changed, then it can be changed if there is a “material change in circumstances.” The term “material change in circumstances” means a significant or big change in either parent’s financial situation. Having to pay a large amount of money toward a child’s or children’s post secondary expenses very well justify a change in support.
To learn more about changing a support order, including when it is possible and the basics of how to do it, watch this video. There is a lot more information about changing both spousal support and child support orders, as well as a more complete discussion of what parents should be paying toward university or college, as well as many more family law issues, in this $20, easy-to-understand book on Ontario Family Law. Still, there may be particular aspects of your case that justify changing support (or do not), and there may be useful strategies to bring some sanity to the support situation. However, to find out about those, you really need to speak to a good family lawyer. John Schuman is a Certified Specialist in Family Law, which means the Law Society of Upper Canada recognizes him as one of the top Ontario Family Law/Divorce Lawyers. To contact John Schuman call 416-449-5080.