In Ontario, you cannot use a marriage contract to make a binding, final decision on child support or university tuition before a child is born. The law dictates that child support is the right of the child, and courts will always base these costs on the child’s actual needs at the time of separation.
When couples in Ontario plan to get married, they often want to map out their entire financial future, including the costs of raising a family. With university tuition and living expenses rising steadily across Canada, it is completely natural to want a guarantee that your future children’s education will be fully funded. You might wonder if you can write a clause into your marriage contract (often called a prenup) demanding that your higher-earning spouse pays 100% of future university costs.
However, the Ontario Family Law Act treats the financial rights of children very differently from the property rights of adults. 👪 While you can easily pre-arrange how your house in Toronto or your business in Ottawa will be divided, you cannot contract out of child support obligations. The law views post-secondary education as a “Section 7 Extraordinary Expense.” In this guide, we will explain how Ontario courts handle future child expenses in domestic contracts. If you want to draft a legally sound agreement, hiring a knowledgeable family lawyer from our directory is your best course of action.
Step-by-Step Process in Ontario: Addressing Future Children in a Contract
While you cannot create a strictly binding order for future tuition, you can still use a marriage contract to establish financial frameworks and mutual intentions. Here is how most applicants in this province approach the situation.
Step 1: Understanding the Limits of the Law
📖 First, you must recognize that child support belongs to the child, not the parents. Under the federal Child Support Guidelines, parents cannot sign away or artificially limit what a child is owed. Section 7 expenses cover extraordinary costs like university tuition, orthodontics, or competitive sports. If a couple separates, an Ontario judge will assess these costs based on the parents’ incomes *at the time the child attends school*, not what was written in a contract ten years prior.
Step 2: Drafting Statements of Intention
Even though it is not strictly legally binding in court, many couples still include a “Statement of Intention” in their marriage contract. Your lawyer can draft a clause stating that both parents morally agree to prioritize funding their child’s post-secondary education. While a judge may not enforce the exact dollar amounts, having this shared philosophy in writing helps set expectations and reduces arguments later during a separation.
Step 3: Setting Up Educational Savings (RESPs)
Instead of relying on a vague promise to pay tuition in 18 years, a practical step is to legally mandate the creation of a Registered Education Savings Plan (RESP). Your marriage contract can include a binding clause that both spouses will contribute a specific amount (e.g., $2,500 CAD annually) into a joint RESP. Because this involves current property and financial management during the marriage, it is much easier to enforce than a future child support order.
Step 4: Revisiting the Agreement Upon Separation
If a separation does occur, the marriage contract will guide the division of property, but the child support aspect will be entirely reassessed. 💬 At this point, you and your ex-spouse will draft a Separation Agreement. This new document *will* legally dictate who pays for tuition, taking into account the RESP funds you saved, any scholarships the child received, and both parents’ current incomes.
How Much Does it Cost in Ontario?
Drafting a marriage contract that attempts to handle complex future family planning requires skilled legal drafting. Here are the typical costs:
- Drafting the Marriage Contract: A family law firm in Ontario will generally charge between $2,500 and $5,000 CAD to draft a comprehensive agreement.
- Independent Legal Advice (ILA): The second spouse must have their own lawyer review the contract, which typically costs $500 to $1,500 CAD.
- RESP Contributions: To maximize the Canada Education Savings Grant (CESG), families often aim to contribute $2,500 CAD per year per child.
| Base Child Support | Food, clothing, basic shelter. | Cannot be limited by a prenup. |
| Section 7 Expenses | University tuition, tutoring, braces. | Cannot be finalized before birth. |
| RESP Contributions | Savings vehicle for future education. | Can be mandated as a property term. |
How Long Does the Process Take?
⌖ Drafting a robust marriage contract that includes financial planning for future children typically takes 2 to 4 months of negotiations between both parties’ lawyers. When it comes to actually determining university tuition costs, that process only happens when the child is ready to apply for post-secondary education, usually around age 17 or 18.
Frequently Asked Questions (FAQ)
Can we agree to zero child support in our marriage contract?
Absolutely not. Under Ontario law, any clause in a domestic contract that attempts to waive a child’s right to base child support or necessary Section 7 expenses is legally void and will be entirely ignored by a judge.
What happens to the RESP if we get divorced?
An RESP is considered a family asset, but it is held in trust for the child. During a divorce, the Separation Agreement must specify who will manage the RESP and guarantee that the funds are solely used for the child’s education.
Can a prenup protect my assets from being used for my step-children?
Yes, generally. A marriage contract can explicitly state that you are not assuming a parental role (standing “in loco parentis”) for your spouse’s children from a previous relationship, which helps protect you from future child support claims for those specific children.
Does the child have to contribute to their own tuition?
Yes, usually. In Ontario, courts expect adult children attending university to contribute to their own education through summer jobs, part-time work, or student loans (OSAP), before the parents are ordered to cover the remaining Section 7 expenses.
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