Note that answers given in this section cannot take the place of a divorce lawyer. For legal advice about your specific situation, you must consult a qualified lawyer. See our disclaimer.

"Who will pay for our kids' private school when we divorce? With the child and spousal support, I don't know how I'll afford the tuition."

The answer depends on a few items. First, it depends on whether the proposed expense is necessary, in relation to the child's best interests. Secondly, it depends on whether the expense is reasonable, in relation to the means of the parties. When we talk about means, we mean how much money the proposed payer -- but also any person that the proposed payer is living with -- has.

The third item it depends on is the spending pattern of the parties prior to separation. For example, if the parties were paying for private school before they separated, they could easily afford it, and they determined that it was somehow necessary for the child because (for example) the child was doing better there than he or she would have in a public school, a judge would likely deem that to be a special or extraordinary expense that the parties would have to contribute to, in proportion to income after separation.

On the other hand, if the parties never had the child in private school during the marriage and now one person wants to enroll the child in such a school, the parties clearly cannot afford it as two households with their separate incomes, and there's no reason why the private school would benefit the child rather than a public school, chances are that a judge would not call it a special or extraordinary expense and would require the parties to pay proportionately.

Brahm Siegel is a partner in the law firm of Nathens Siegel, a Toronto firm that restricts its practice to divorce and family-law issues. He is the consulting editor of the McCarthy Tetrault Guide to the Family Courts. He can be reached at (416) 222-6980. View his firm's Divorce Magazine profile.