J. Medical and Dental Insurance; Medical, Dental or Health-Related Expenses

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 272-276

Page 272

Section 6 of the Federal Child Support Guidelines provides that, in making a child support order, where medical or dental insurance coverage is available to either or both²⁴³of the spouses or former spouses through his or her employer or otherwise at a reasonable rate, the court may order that coverage be acquired or continued.²⁴⁴Child support orders normally include provision whereby health insurance coverage will be maintained for eligible dependants. Where this is placed at risk by an obligor’s threat to quit employment, the court may order an additional amount of support to replace the health insurance coverage.²⁴⁵An order for medical and dental insurance coverage may be struck out on appeal where there is no evidence of such coverage being available through employment nor is there any evidence of the cost of such coverage through a private provider.²⁴⁶Where there is existing medical and dental insurance coverage through employment, its continuance should be virtually automatic.²⁴⁷The court may grant an order under section 6 of the Federal Child Support Guidelines for the reinstatement of cancelled medical and dental insurance available to a spouse through employment.²⁴⁸An order for dental and medical insurance under section 6 of the Guidelines is supplementary to the amount of child support payable under the applicable provincial or territorial table and should not be deducted from the amount payable pursuant to the applicable table.²⁴⁹Judicial directions may be issued respecting the processing of medical and dental claims through the obligor’s insurance plan where difficulties

Page 273

have been encountered in the past²⁵⁰and a recalcitrant party can thereafter expect an order for substantial costs against him or her.²⁵¹The court may direct the insured spouse to authorize the insurer to deal directly with his or her spouse in the reimbursement of medical or dental claims with respect to a child of the marriage. In the event this is unacceptable to the insurer, the court may direct the insured spouse to immediately reimburse the other spouse in the same percentage as the plan pays to the insured spouse. If rejected in whole or in part, the court may further direct the spouses to share the expense.²⁵²Section 6 is complemented by sections 7(1)(b) and (c) of the Federal Child Support Guidelines which provides that in a child support order the court may, on either spouse’s or former spouse’s request, provide for the payment 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 and those of the child and to the family’s spending pattern prior to the separation: section 7(1)(b) provides for that portion of the medical and dental insurance premiums attributable to the child;²⁵³and section 7(1)(c) provides for health-related expenses that exceed insurance reimbursement by at least $100 annually,²⁵⁴including orthodontic treatment,²⁵⁵professional counselling provided by a psychologist, social worker, psychiatrist, or any other person,²⁵⁶physiotherapy, occupational therapy, speech therapy,²⁵⁷prescription drugs, hearing aids, glasses, and contact lenses. The $100 threshold in section 7(1)(c) of the Child Support Guidelines is not a deductible but a threshold. Once the threshold is exceeded, the entire amount of the section 7 expense is chargeable, but any payments made by a medical insurer for prescriptions or dental care are deductible.²⁵⁸Section 6 of the Federal Child Support Guidelines should be utilized whenever possible before resorting to section 7 of the Guidelines, because section 6 provides a significant benefit to children at little or no expense to the parents in that the insurance premiums, if any, will normally be significantly less than the amount of the expenses that would otherwise be incurred if no insurance coverage were available.²⁵⁹Any expenses in excess of those reimbursed through a medical or dental insurance plan may be ordered to be shared proportionately in accordance with the respective spousal incomes.²⁶⁰Reciprocal obligations

Page 274

may be imposed on the parents to maintain coverage for the children under their employment health and dental plans, with any expenses not covered being shared proportionately in accordance with the respective parental incomes.²⁶¹Medical expenses may be viewed as a whole, rather than individually, in determining whether they are reasonable and necessary within the meaning of section 7(1) of the Federal Child Support Guidelines.²⁶²With respect to necessary health-related expenses, ability to pay is the deciding factor.²⁶³Expenses for private nursing care will be denied where there is no money available to meet such expenses.²⁶⁴A child in receipt of a disability pension may be required to contribute towards his or her medical expenses.²⁶⁵

Although medical and dental premiums attributable to the child are allowable expenses under section 7(1)(b) of the Federal Child Support Guidelines, life insurance premiums are excluded.²⁶⁶A court should refuse to apportion medical and dental insurance premiums under section 7(1)(b) of the Federal Child Support Guidelines where the obligor incurs no additional expense by including children of the marriage under his or her employer’s insurance plan.²⁶⁷Where there is no evidence as to the portion of the medical and dental premiums attributable to the children, such as the difference between the rate for a single person as against the rate for family coverage, or such coverage as would include the children, the court should not guess the cost that may be attributable to the children.²⁶⁸Where health insurance coverage is lost because the non-custodial parent moves to another country, that parent may be ordered to pay a proportion of the cost of replacement coverage taken out by the custodial parent, with the proportionate amount reflecting the respective spousal incomes.²⁶⁹Section 7(1)(c) of the Federal Child Support Guidelines does not provide a comprehensive list of health-related expenses. Health-related expenses include necessary and reasonable expenses incurred for medical treatment, dental and orthodontal services,²⁷⁰ chiropractic services,²⁷¹psychological or counselling services,²⁷²and optical services,²⁷³but may not include personal expenses incurred by...