I. Child Care Expenses

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 266-272

Page 266

Section 7 of the Federal Child Support Guidelines confers a discretion on the court to order the payment of all or part of child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment. No corresponding discretion is conferred on the court where child care expenses are incurred for the above reasons by a non-custodial parent. Notwithstanding this apparent limitation, reciprocal orders for the pro rata sharing of child care expenses based on the respective parental incomes have been made where de facto custody has been shared between the parents.¹⁷⁴Even if reciprocal orders are not permissible, the same result may be achieved indirectly, because any child care expenses incurred by a non-custodial parent may be considered in determining his or her contribution to the custodial parent’s child care expenses. This flows from the fact that the discretion conferred by section 7(1) of the Guidelines specifically requires the court to have regard to the "means" of the spouses, and child expenses incurred by the non-custodial parent may significantly affect his or her ability to contribute to expenses incurred by the custodial parent.¹⁷⁵Unlike section 7(a) of the Guidelines, sections 7(b) to (f) empower both custodial or non-custodial parents to seek a contribution to other special or extraordinary expenses.

Child care expenses do not need to be "extraordinary" under section 7 of the Federal Child Support Guidelines, but they must satisfy the dual tests of reasonableness and necessity set out in section 7(1) of the Guidelines.¹⁷⁶Child care expenses may be denied under section 7 of the Federal Child Support Guidelines where the non-custodial parent’s family is able to provide child care,¹⁷⁷although a court may refuse to disturb existing daycare arrangements which have worked well for a substantial period of time.¹⁷⁸A court may exercise its discretion by refusing to order any contribution to child care expenses by the non-custodial parent, having regard to substantial government subsidies received by the custodial parent, coupled with the non-custodial parent’s exercise of access for almost 40 percent of the time.¹⁷⁹A contribution to child care expenses may be reduced to take account of child connected expenses incurred by the contributing spouse.¹⁸⁰The existence of child care expenses does not give the employed custodial parent an automatic right to receive a contribution to these expenses from the non-custodial parent. Where the non-custodial parent has high extra-provincial access expenses to which the custodial parent makes no contribution, the court may exercise its discretion by declining

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to grant an order for section 7 expenses, having regard to the means of each household and the importance of maximizing contact between the children and the non-custodial parent.¹⁸¹Child care expenses must be actually incurred; no claim is available for prior unpaid child care under section 7 of Federal Child Support Guidelines¹⁸²or for free transportation provided by a spouse’s employer.¹⁸³An unemployed parent is not entitled to claim contribution to a child’s preschool expenses under section 7 of the Guidelines.¹⁸⁴An order for a contribution to child care expenses may be made pursuant to section 7 of Guidelines, however, where the applicant becomes unemployed and is seeking new employment; section 7 is to be interpreted liberally where child care expenses are required to enable the applicant to research the market and find a new job.¹⁸⁵Where a parent is upgrading his or her skills for entry into the labour force, the other parent may be ordered to pay all child care expenses up to a designated monthly maximum.¹⁸⁶An order apportioning child care expenses may be expressly declared to be conditional on the applicant’s actual pursuit of a contemplated educational course with its resulting additional child care expense.¹⁸⁷In situations where resources are available, the court will allow child care costs for an employed parent as a legitimate expense.¹⁸⁸Even though child care may be a necessity, the amount of the non-custodial parent’s contribution may be limited by the ability to contribute.¹⁸⁹A court should refuse to order a contribution towards child care expenses where the non-custodial parent lacks the financial ability to meet this additional obligation.¹⁹⁰An application for a contribution to child care costs may also be denied because of the non-custodial parent’s access costs.¹⁹¹Where child care costs are found excessive, the court may reduce the amount before calculating the respective contributions of each spouse or former spouse to these costs.¹⁹²The availability of an older sibling to undertake babysitting responsibilities does not necessarily preclude an order for the sharing of child care expenses under section 7 of the Guidelines.¹⁹³Babysitting expenses paid to an older stepsibling may be the subject of an order for a parental contribution under section 7 of the Federal Child Support Guidelines.¹⁹⁴

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A claim for child care expenses may be denied where the child is twelve years of age and, therefore, old enough to care for herself,¹⁹⁵but a twelve-year-old child should not be expected to regularly babysit a younger sibling in order to reduce child care expenses.¹⁹⁶The provision of consistent and reliable child care on a regular basis may be inconsistent with the delegation of this responsibility to older siblings and may render a financial contribution from the non-custodial parent reasonable and necessary within the meaning of section 7 of the Federal Child Support Guidelines.¹⁹⁷

Child care costs can vary substantially according to the age of the child, the type of care, whether the care is full-time or part-time, and the ability to pay, but they must be reasonable and necessary. Section 7(1) of the Federal Child Support Guidelines specifically limits the judicial discretion to provide for the payment of all or any expenses by requiring the court to take into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense, having regard to the means of the spouses and those of the child and to the family’s spending pattern before the separation.¹⁹⁸

Notwithstanding the last mentioned consideration, courts will, no doubt, take account of reasonable and necessary child care expenses triggered by the fact of separation.

In order to qualify for a court-ordered contribution under section 7(1)(a) of the Federal Child Support Guidelines, the applicant must adduce evidence to show that the child care expenses were incurred in consequence of the custodial parent’s employment, education or training for employment, or the custodial parent’s illness or disability.¹⁹⁹A parent, who has part-time employment, is not entitled to call on the other parent for a pro rata contribution towards full-time child care.²⁰⁰A contribution to the cost of a full-time nanny will be denied where the parent chooses not to be employed and does not suffer from any disability that warrants the employment of a nanny.²⁰¹Babysitting expenses that are incidental to the custodial parent’s recreational or other activities fail to qualify under section 7(1)(a) of the Guidelines,²⁰²necessary though they may be to the welfare of an employed sole custodial parent. Section 7(1)(a) is addressed to third party expenses, although a custodial parent’s personal assumption of the responsibility for child care may be considered in determining the right to, amount and duration of spousal support.²⁰³

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The court may order a parent to contribute towards the cost of a nanny where this is deemed preferable to lower cost daycare.²⁰⁴Various factors may justify the choice of a nanny over other forms of child care and the fact that the nanny discharges housecleaning and other responsibilities does not necessarily justify any reduction in the allocation of child care expenses under section 7 of the Guidelines,²⁰⁵although it may justify a discounting of the nanny’s expenses.²⁰⁶The costs of a provincially subsidized full-time nanny may be nominally adjusted to reflect the fact that the nanny also performs some household services for the custodial parent’s new family in addition to caring for a disabled child of the marriage.²⁰⁷On an application for expenses under section 7(1)(a) of the Federal Child Support Guidelines to meet the costs of a live-in nanny, it is appropriate for the court to consider whether some less costly child care arrangements would be appropriate.²⁰⁸Where an application for spousal support is joined with the claim for such expenses, the court should look at the overall situation in determining the type and amount of expenses that require a contribution under section 7(1)(a) of the Guidelines.²⁰⁹An order for a contribution to child care expenses under section 7 of the Guidelines may be higher during the summer months when a live-in nanny would be appropriate and lower during the school year when the child care needs and costs relating thereto will be substantially reduced.²¹⁰The age of the children is a very significant factor when considering whether the expense of a nanny is necessary and reasonable in relation to the means of the spouses.²¹¹An order whereby the parents are required to share the costs of a full-time nanny in proportion to their respective...