A. Distinctions between Ordinary and Extraordinary Expenses; Definition of Extraordinary Expenses

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 245-252

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See note ¹

The court may, on the request of either spouse or former spouse,²provide in a child support order for the payment of any of the following expenses, or any portion of those expenses, taking 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 or former spouses and those of the child and to the family’s spending pattern prior to the separation:

(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 per illness or event, 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 educational programs that meet the child’s particular needs;

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(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.³

A reference to "special or extraordinary expenses" appears in the marginal note to section 7 of the Federal Child Support Guidelines, but the term "special expenses" does not appear in the body of section. 7. "Special," as distinct from "extraordinary," expenses are generally added more or less as a routine matter,⁴provided that they are not unreasonably high.⁵Section 7 of the Guidelines is not presumptive; it indicates that a court may, on either spouse’s request, provide for an amount to cover all or any portion of the expenses enumerated, which may be estimated taking into account the necessity of the expenses in relation to the child’s best interests and the reasonableness of the expenses in relation to means of the spouses and those of the child and to the family’s spending pattern prior to separation.⁶An order for special or extraordinary expenses under section 7 of the Federal Child Support Guidelines is not premised on a prior or concurrent order for the payment of the basic table amount of child support.⁷A non-primary residential parent may seek contribution to a child’s extraordinary expenses for extracurricular activities and the amount ordered may be set-off against the table amount of child support payable by the non-primary residential parent.⁸While ordering a pro rata sharing of all of the allowable expenses under section 7 of the Guidelines, a court may order that the mother shall assume the primary responsibility for dealing with certain designated expenditures while the father shall assume the primary responsibility for the others.⁹Although child care expenses, medical and dental insurance, health-related expenses and post-secondary educational expenses need not be extraordinary under sections 7(1)(a),(b), (c) and (e) of the Federal Child Support Guidelines in order to warrant a judicial allocation, expenses for primary or secondary school education or for any educational programs that meet a child’s particular needs under section 7(1)(d) of the Guidelines and expenses for extracurricular activities under section 7(1)(f) of the Guidelines must be extraordinary in order to be allowable.¹⁰All expenses, however, must meet the tests of necessity and reasonableness set out in section 7(1) of the Guidelines.¹¹The onus falls on the applicant who seeks special or extraordinary expenses under section 7 of the Child Support Guidelines to prove

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that the expenses are necessary in relation to the child’s best interests and reasonable having regard to the parental financial circumstances.¹²Effective May 1, 2006, section 7 of the Federal Child Support Guidelines was amended to promote clarity and consistency in the definition of "extraordinary expenses" under sections 7(1)(d) and 7(1)(f) of the Guidelines.¹³In Frass v. Frass,¹⁴Sandomirsky J., of the Saskatchewan Court of Queen’s Bench, stated that he did "not believe that the ‘reasonable coverage’ definition contained in the May 1, 2006 amendment is new law. At best, it is a single test now enunciated in legislative form which should provide for more consistency and predictability as opposed to the many attempts to articulate a definition of extraordinary which is found in the case law." Pursuant to section 7(1.1)(a) of the amended Guidelines, expenses are extraordinary if they exceed an amount that the requesting parent can reasonably cover. In determining whether the expenses are reasonably affordable, the court must consider the income of the requesting spouse and any child support received. Where section 7(1.1)(a) is inapplicable in that the expenses do not exceed an amount that the requesting spouse can reasonably cover, the court will determine whether the expenses are extraordinary by taking into account the following five factors:

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount of child support received,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.¹⁵These factors indicate the significant discretion reposed in the court of first instance to determine what is or is not an extraordinary expense based on the evidence before the court. An important consideration is the total income of the spouse in receipt of child support, but there is no formula and the court must have regard to the evidence before it concludes whether all, some, or none of the expenses in sections 7(1)(d) and/or (f) are extraordinary.¹⁶

To qualify as a section 7 expense, the applicant must meet the thresholds stated in sections 7(1) and 7(1A) of the Child Support Guidelines. In MacDonald v. Pink,¹⁷Forgeron J., of the Nova Scotia Supreme Court, distilled the following principles from relevant Nova Scotia case law:

(i) Section 7 of the Guidelines provides the court with the jurisdiction to grant a discretionary award.

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(ii) The starting point is the assumption that the table amount will ordinarily be sufficient to provide for the needs of the child. The burden therefore rests on the party asserting the claim. Proof is on a balance of probabilities and based upon clear, cogent, and convincing evidence.

(iii) The sec. 7 analysis is fact specific — one that must be determined on a case by case basis taking into consideration the necessity and reasonableness of the expense, and the obligation of the noncustodial parent to contribute to the expense.

(iv) Section 7 cases determined prior to the 2006 amendment may not be applicable.

(v) It is preferable to first determine whether expenses are necessary in relation to the child’s best interests, and reasonable in relation to the means of the parents under sec. 7(1) before determining the applicability of sec. 7(1A) of the Guidelines.

(vi) If the court decides that the expenses meet the requirements of sec. 7(1), then activity expenses must be further scrutinized pursuant to sec. 7(1A).

(vii) Section 7(1A) calls for a two part test. First, the court is to determine whether or not the claimed expenses exceed those which the custodial parent could reasonably cover given her total income, and the amount of child support being received.

(viii) If the first test is not applicable, then the court must have recourse to sec. 7(1A)(b). This second test requires the court to review a number of factors, including a proportionality inquiry, and an inquiry into the nature and number of activities, any special needs or talent of the child, the overall cost of the activities, and any other similar and relevant factors.

(ix) The custodial parent does not need to prove that a child is at an elite level in order to have an extracurricular activity included as a sec. 7 expense.

Four separate but related issues arise under section 7 of the Federal Child Support

Guidelines, namely,

(i) the expenses must fall within one of the categories specified;

(ii) they must be a necessity in relation to the child’s best interests;

(iii) they must be reasonable, having regard to the means of the spouses and child and the spending pattern before separation; and

(iv) the court must determine whether the expenses claimed are adequately provided for by the applicable provincial table under the Guidelines.¹⁸

Section 7 expenses cannot be determined in a vacuum. A court cannot determine whether any individual expenses may be necessary and reasonable without knowing the totality of the expenses.¹⁹The test of necessity under section 7(1) of the Guidelines is not synonymous with the bare necessities of life; it refers to things suitable to or proper for the child’s station in life bearing in mind his or her requirements at the time.²⁰The reasonableness of the expenditure under section 7(1) of the Guidelines is more difficult to determine because it brings

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into play economic realities.²¹Whereas a...