L. Special and Extraordinary Expenses

Author:Julien D. Payne - Marilyn A. Payne

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See note 225

1) General

Section 7 of the Federal Child Support Guidelines empowers a court to grant an order for designated special or extraordinary expenses relating to a child of the marriage. An order for contribution to special and extraordinary expenses under section 7 of the Guidelines is discretionary as to both entitlement and amount.226The list of expenses under section 7 of the Guidelines is exhaustive. Expenses that fall outside the categories specified cannot be the subject of any order. The expenses must be necessary in light of the child’s

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best interests.227The expenses must also be reasonable, having regard to the means of the spouses and child and the family’s previous spending pattern.228

The family’s pre-separation spending pattern may need to be re-assessed in light of the increased costs generated by the split into two households. Relevant factors to be considered in determining whether special or extraordinary expenses are reasonable include (1) the combined income of the parents; (2) the fact that two households must be maintained; (3) the extent of the expenses in relation to the combined income level of the parents; (4) the debts of the parents; (5) any prospect for a decline or increase in the parents’ means in the near future; and (6) whether the other parent was consulted prior to the expenses being incurred.229Child-care expenses, dental and medical insurance premiums, health care expenses, and post-secondary education expenses, if necessary and reasonable, will be ordinarily shared in proportion to the respective parental incomes. These expenses need not be "extraordinary" in order to satisfy the requirements of section 7 of the Guidelines.230Expenses relating to primary or secondary school or special educational needs and expenses for extracurricular activities must be "extraordinary" in order to trigger an order under section 7 of the Guidelines.231A contribution to affordable "special" (as distinct from "extraordinary") expenses listed under section 7(1) of the Federal Child Support Guidelines is generally ordered more or less as a routine matter where these expenses are sought in a child support proceeding.232The test for awarding section 7 expenses was described by the Ontario Court of Appeal in Titova v Titov as follows:

In awarding s. 7 special and extraordinary expenses, the trial judge calculates each party’s income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of s. 7 of the Guidelines, determines whether the claimed expenses are necessary "in relation to the child’s best interests" and are reasonable "in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation." If the expenses fall under s. 7(1)(d) or

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(f) of the Guidelines, the trial judge determines whether the expenses are "extraordinary".233In the past, there has been a lack of judicial consistency in the interpretation accorded to the term "extraordinary expenses" under paragraph 7(1)(d) (extraordinary education expenses) and paragraph 7(1)(f) (extraordinary expenses for extracurricular activities) of the Federal Child Support Guidelines.234

To promote clarity and consistency, section 7 of the Federal Child Support Guidelines has been amended as of 1 May 2006 by SOR/2005-400, to include subsection 7(1.1), which sets out a specific two-part definition of "extraordinary expenses."235Pursuant to paragraph 7(1.1)(a), expenses are extraordinary if they exceed an amount that the requesting spouse can reasonably cover, taking into account that spouse’s income and the basic amount of child support received (usually the applicable table amount). Where paragraph 7(1.1)

(a) is inapplicable because the expenses do not exceed the amount that the requesting spouse can reasonably cover, paragraph 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

(v) any other similar factor that the court considers relevant.

The definition of "extraordinary expenses" under section 7(1.1) of the amended Federal Child Support Guidelines largely mirrors the definition adopted in 2001 under paragraph 7(1.1) of the Manitoba Child Support Guidelines.236The additional requirements of necessity and reasonableness within the meaning of subsection 7(1) of the Federal Child Support Guidelines are unaffected by

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the explicit definition of "extraordinary expenses" under paragraph 7(1.1) of the Guidelines. Only if the court concludes that an expense is extraordinary, will the court turn its attention to the additional requirements of necessity and reasonableness within the meaning of subsection 7(1) of the Federal Child Support Guidelines.237In determining the amount of an expense, section 7(3) of the Guidelines requires the court to take into account any subsidies, benefits, and income tax deductions or credits that are available with respect to the expense. Contributions to expenses made by family relatives or community groups are taken into account.238Eligibility for income tax relief must be taken into account, even if such relief is not sought by the recipient spouse.239Although a court must take the income tax implications into account, it may be impossible to quantify this until the end of the tax year. One way of addressing this problem is for the court to direct each parent to pay his or her proportionate share of the expenses when they fall due and to later share in the tax benefit on the same proportionate basis, when it is ascertained.240In order to accommodate this result, the court may direct the parties to exchange their income tax returns within a specified time after filing.241Pursuant to section 13(e) of the Federal Child Support Guidelines, where a court orders the payment of special or extraordinary expenses, the particulars of the expense must be specified in the order, including the child to whom the expense relates, the amount of the expense, or where the amount cannot be determined, the proportion to be paid in relation to the expenses.242An order for the payment of special or extraordinary expenses need not specify periodic payments on a regular basis. The expenses may be isolated, sporadic, or recurring at irregular intervals. Pursuant to section 11 of the Federal Child Support Guidelines, a court may require expenses to be discharged on a periodic basis or by a lump sum or by a combination of both. Where the expenses cannot be predetermined, a court may simply order that all or a fixed percentage of the expenses shall be paid after a proper account is presented, although such an order may trigger difficulty if automatic enforcement processes are invoked to secure due compliance with the order.

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2) Child-Care Expenses

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.243Child-care expenses may be denied under section 7 of the Guidelines where the non-custodial parent’s family is able to provide child care,244although a court may refuse to disturb existing day-care arrangements that have worked well for a substantial period of time.245

Section 7 of the Guidelines does not cover babysitting expenses that are incidental to a custodial parent’s recreational activities.246A contribution to child-care expenses may be reduced to take account of child-connected expenses incurred by the contributing spouse.247In situations where resources are available, the court will allow child-care costs for an employed parent as a legitimate expense.248Even though child care may be a necessity, the amount of the non-custodial parent’s contribution may be limited by the ability to contribute.249A 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.250An application for a contribution to child-care costs may also be denied because of the non-custodial parent’s access costs.251Where 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.252A claim for child-care expenses may be denied where the child is twelve years of age and, therefore, old enough to care for himself or herself,253but a twelve-year-old child should not be expected to regularly babysit a younger sibling in order to reduce child-care expenses.254Child-care expenses, like health-related expenses and expenses for

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post-secondary education, do not need to be extraordinary in order to satisfy the requirements of section 7(1)(a) of the Federal Child Support Guidelines.255

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...

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