M. Extraordinary Expenses for Extracurricular Activities

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 286-293

Page 286

See note ³⁸³

Section 7(1)(f) of the Federal Child Support Guidelines confers a discretion on the court to provide for the payment of all or part of any extraordinary expenses for extracurricular activities. The fact that an expense relates to an extracurricular activity does not automatically bring the entire amount within section 7 because the basic child support under the applicable table is presumed to include an allowance for some extracurricular activities.³⁸⁴

A custodial spouse has an obligation to give notice to the non-custodial spouse of extraordinary expenses expected to be incurred. If, having done so, the non-custodial spouse unreasonably refuses to agree to share in the expenses, then the custodial parent is quite justified in pursuing the other parent for contribution.³⁸⁵Prior to an amendment of section 7 of the Federal Child Support Guidelines which became effective on May 1, 2006, judicial opinions differed on the meaning to be assigned to the phrase "extraordinary expenses for extracurricular activities." Some courts asserted that the term "extraordinary" was to be construed objectively without regard to spousal incomes. On this interpretation, the words "extraordinary expenses for extracurricular activities" was given the plain meaning of "unusual" or "exceptional" expenses and a determination was made, not in light of parental income, but having regard to the nature of the activities and the nature or extent of the expenses. The respective spousal incomes only became relevant under this interpretation if the court found that the expenses were unusual and also necessary in the child’s best interests, in which event the spousal incomes would be considered by the court in determining whether an amount, and what amount, should be ordered to be paid.³⁸⁶Other courts adopted a subjective approach by concluding that the particular expenses must be unusual in their nature or amount when compared to those ordinarily incurred by a family of similar means in similar circumstances and the court had to consider the means of both of the parents and the children in making its determination.³⁸⁷As was pointed out by the British Columbia Court of Appeal in McLaughlin v. McLaughlin,³⁸⁸judicial controversy on the meaning of the phrase "extraordinary expenses for extracurricular activities" in section 7 of the Federal Child Support Guidelines was

Page 287

fuelled by the lack of direction in the Guidelines themselves. After an exhaustive review of conflicting appellate rulings, the British Columbia Court of Appeal favoured the subjective interpretation of section 7(1)(f) of the Guidelines by concluding that the court, in determining whether expenses fall within that section, should take into consideration such factors as the combined income of the parties, the nature and amount of individual expenses, the nature and number of activities, any special needs or talents of the children, and the overall cost of the activities.³⁸⁹In consequence of the lack of judicial consistency in defining "extraordinary expenses" under both section 7(1)(d) (extraordinary education expenses) and section 7(1)(f) (extraordinary expenses for extracurricular activities) of the Federal Child Support Guidelines, section 7 has been amended as of May 1, 2006 to include section 7(1.1) which sets out a specific definition of "extraordinary expenses."³⁹⁰The amendment mirrors the definition adopted in 2001 under the Manitoba Child Support Guidelines,³⁹¹ except with respect to who can apply for relief. Under the Federal Child Support Guidelines either spouse can seek an amount for special or extraordinary expenses, while under the Manitoba Child Support Guidelines only the parent with final decision-making authority respecting the child’s education and activities can do so.³⁹² Both the federal and the Manitoba Guidelines provide a two part definition. First, pursuant to section 7(1.1)(a), expenses are extraordinary if they "exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover." This is determined having regard to the income of the requesting spouse as well as any child support received. This element of the definition relates to the requesting spouse’s ability to pay for the expenses. If the expenses exceed those that the requesting spouse can reasonably cover, they are extraordinary. The tests of necessity and reasonableness set out in section 7(1) of the Guidelines continue to apply to extraordinary expenses under sections 7(1)(d) and 7(1)(f). Where section 7(1.1)(a) does not apply (because the expense does not exceed the amount that the requesting spouse can reasonably cover), the second part of the definition, set out in section 7(1.1)(b), applies. Section 7(1.1)(b) directs the court to determine whether the expenses are extraordinary having regard to the following five factors:

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

(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 costs of the programs and activities; and

Page 288

(v) any other similar factor that the court considers relevant.³⁹³These factors largely correspond to those in McLaughlin v. McLaughlin, discussed above.³⁹⁴

In Staples v. Callender,³⁹⁵the Nova Scotia Court of Appeal rejected the trial judge’s suggestion that extracurricular sports activities must be at an "almost elite level" in order to warrant consideration as section 7 expenses. It concluded that this was not consistent with the requirements of section 7 (1)(f) and section 7(1A)(a) of the Guidelines. Each case requires a fact-specific analysis.

It is impossible to list specific categories of expenses as falling within the ambit of section 7(1)(f) of the Guidelines. An assessment of the particular facts by the trial judge is of primary importance and an appellate court should not substitute its own discretion for that of the trial judge where there is no demonstrated error of law.³⁹⁶Although the table amounts of child support under the Federal Child Support Guidelines apparently include some allowance for expenditures incurred for the extracurricular activities of children, there is no readily available information to indicate what portion of the applicable table amount is allocated to meet these expenses. Accordingly, courts lack any clear guidance as to when expenses for extracurricular activities are ordinary and when they are extraordinary. As Veit J., of the Alberta Court of Queen’s Bench, observed in MacIntosh v. MacIntosh, "it would be helpful if some guideline, based perhaps on a percentage of the total income of the parents, could help identify which extracurricular activities belong in the ‘extraordinary’ category."³⁹⁷Given the absence of any such guidance, there is a substantial lack of consistency in the judicial disposition of applications for extraordinary expenses for extracurricular activities under section 7(1)(f) of the Federal Child Support Guidelines.

Section 7 of the Guidelines places an onus on a parent who seeks expenses for the children’s extracurricular activities to establish why those expenses should be allowed. Such expenses should not be added as a matter of course.³⁹⁸Section 7(1)(f) of the Federal Child Support Guidelines applies only to extracurricular activities; a family vacation is not an extracurricular activity³⁹⁹but a summer camp for the children may qualify.⁴⁰⁰

Page 289

Not all expenses for extracurricular activities will qualify for sharing between the spouses or former spouses. Such expenses must be "extraordinary" in order to qualify under section 7 of the Federal Child Support Guidelines.⁴⁰¹Basic expenses, such as the costs of registration in a community sports league, or normal costs commonly associated with sport, such as the purchase of ordinary equipment and minimal travel costs are not extraordinary expenses and should be discounted from any exceptional expenses.⁴⁰²A child’s pursuit of a sporting career may be an important consideration where extra expenses are thereby generated.⁴⁰³In determining whether a child support order should provide for an amount to cover all or some extraordinary expenses for extracurricular activities, 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 the current means of the spouses and those of the child and to the family’s spending pattern prior to the separation.⁴⁰⁴When

expenses are anticipated but not incurred, the claim for such expenses may be dismissed as premature,⁴⁰⁵although a court may accept a reliable estimate of anticipated expenses to expedite the process and avoid further legal costs.⁴⁰⁶

A court should not apply its personal values in determining whether an expense is extraordinary. The standard of living during cohabitation should be considered in addition to the other considerations defined by section 7 of the Federal Child Support Guidelines.⁴⁰⁷The cumulative total of expenses incurred for the children’s extracurricular activities may render the expenses extraordinary; even though the expenses relating to any single activity would not be regarded as extraordinary.⁴⁰⁸Some expenses for extracurricular activities may be extraordinary; others may not.⁴⁰⁹Having regard to the fact that the table amount of child support builds in a certain amount for extracurricular expenses,⁴¹⁰the norm for what are ordinary expenses increases as the family income increases;⁴¹¹ordinary expenses for a family income of $30,000 are less than what is normal for a family income of $60,000.⁴¹²It may be difficult to determine where ordinary expenses for extracurricular activities end and extraordinary expenses begin, but the court must make that determination

Page 290

based on...