B. Exhaustive List of Designated Expenses; Definition of "Means"

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 252-257

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The list of special and extraordinary expenses under sections 7(1)(a) to (f) of the Federal Child Support Guidelines is exhaustive; if a claim does not fall within any of the listed categories, it must be dismissed.⁵³Any affidavit submitted on behalf of the party making the request must detail the claims under the various headings of section 7(1) of the Guidelines.⁵⁴

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Capital expenses for a home and contents do not fall within the ambit of the exhaustive list of expenses under section 7 of the Guidelines.⁵⁵Expenses incurred for respite care of a severely disabled adult child have been found to fall outside the ambit of section 7 of the corresponding British Columbia Child Support Guidelines,⁵⁶but it is appropriate for a court to address the cost of respite care through spousal support under section 15.2(6)(b) of the Divorce Act.⁵⁷Expenses such as entertainment, pets, vacations, school fees, school supplies, children’s allowances, meals outside the home, personal grooming, and clothing do not constitute expenses contemplated by section 7 of the Federal Child Support Guidelines.⁵⁸

Veterinarian bills relating to the family dog are not section 7 expenses.⁵⁹Expenses associated with driving an automobile⁶⁰or recreational vehicle⁶¹may fall outside the parameters of section 7 of the Guidelines. Section 7 of the Guidelines is not intended to offer a full indemnification of all of a custodial parent’s out-of-pocket monthly expenses for a child.⁶²Successful claims for additional support by way of special or extraordinary expenses under section 7 of the Guidelines must be supported by sufficient evidence and documentation to enable the court to determine both the necessity and reasonableness of the expenses within the parameters of section 7(1) of the Guidelines.⁶³A parent who seeks expenses under section 7 of the Guidelines has the onus of providing details concerning the actual or anticipated expenses and furnishing evidence on the basis of which the court can determine the necessity of the expense in relation to the child’s best interests and the reasonableness of the expenses having regard to the financial circumstances of the parents and child and the family’s pre-separation spending pattern.⁶⁴An application for special or extraordinary expenses may be dismissed for lack of relevant evidence, without prejudice to a re-application on more comprehensive material.⁶⁵An obligation of financial disclosure falls on both parties under section 21 of the Guidelines where an application is made for expenses under section 7 of the Guidelines.⁶⁶Judicial discretion to provide for the aforementioned child-related expenses was deemed necessary because the child support amounts fixed by the provincial or territorial tables reflect average expenditures on children and the aforementioned expenses do not lend themselves to averages.⁶⁷Section 7, therefore, provides some degree of

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flexibility because not all family needs are the same. However, the court should maintain the applicable table amounts except in cases where to do so would clearly provide too much or too little money to meet the child’s reasonable needs.⁶⁸Although some observers regard the basic provincial table amounts of child support as too low, they have been legislated and it is improper for a court to readjust the support by adding extra support under section 7 of the Federal Child Support Guidelines in circumstances not contemplated by that section.⁶⁹Section 7 of the Federal Child Support Guidelines vests a broad discretion in the court to determine both the right to expenses and the amount to be paid. The court may allow all, any or none of the expenses claimed.⁷⁰In exercising its discretion, the court takes into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense, having regard to

(i) the means of the spouses or former spouses;

(ii) the means of the child; and

(iii) the family’s spending pattern prior to separation.⁷¹

The reference to "the family’s spending pattern before separation" in section 7 of the Guidelines does not signify that the expenses in question must have been of a type that were incurred before separation but it is easier to find reasonableness if the expenses were of a kind that the family had incurred before separation.⁷²The stringent requirements imposed by the undue hardship provisions of section 10 of the Guidelines have no application to a claim for special or extraordinary expenses under section 7 of the Guidelines. Whether such expenses are "reasonable" is to be determined within the discretionary parameters specifically set out in section 7 of the Guidelines.⁷³Three questions should be asked with respect to whether a parent should be ordered to contribute towards expenses under section 7 of the Guidelines, namely:

(i) is the expense necessary in light of the child’s best interests?

(ii) the family’s spending pattern during cohabitation? And

(iii) is there an ability to pay a pro rata share of the expense?

The application for expenses under section 7 of the Guidelines should be dismissed if the answer is no to any of the above questions.⁷⁴A line-by-line review of a spouse’s budget to determine his or her disposable income is not required. The function of the court is to look at the "means" of the parents along with the other criteria under section 7(1) of the Guidelines in a general way in order to determine each spouse’s share of the expenses incurred.⁷⁵Court-ordered provision for special or extraordinary expenses in addition to the basic table amount of child support is not automatic. The onus falls on the person seeking

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such expenses to prove why they should be allowed.⁷⁶The ability to pay or contribute towards special or extraordinary expenses is a critical factor⁷⁷that may render it necessary for the court to accord priority to certain types of expenses over others, for example, special medical expenses over extraordinary expenses for extracurricular activities.⁷⁸It is counterproductive to order expenses that are beyond the means of the spouses even though they may reflect their previous lifestyle.⁷⁹A claim for special or extraordinary expenses will be denied where there has been no pre-separation pattern of such expenses and the expenses are neither necessary nor reasonable in light of the extremely limited income of the spouses.⁸⁰An obligor may be ordered to pay all of the allowable special or extraordinary expenses where the...