Special or Extraordinary Expenses

• Jurisdiction: Canada
• Pages: 278-334
• Author: Julien D. Payne,Marilyn A. Payne

278

 

Special or Extraordinary Expenses

A. DISTINCTIONS BETWEEN ORDINARY AND EXTRAORDINARY

EXPENSES; DEFINITION OF EXTRAORDINARY EXPENSES

e court may, on the request of either spouse or former spouse,1 provide in a child support

order for the payment of any of the following expenses, or any portion of those expenses, tak-

ing 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:

1) child care expenses incurred as a result of the employment, illness, disability, or education

or training for employment of the spouse who exercises the majority of parenting time;

2) that portion of the medical and dental insurance premiums attributable to the child;

3) 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;

4) extraordinary expenses for primar y or secondary school education or for any educational

programs that meet the child’s particular needs;

5) expenses for post-secondary education; and

6) extraordinary expenses for extracurricular activities.2

A reference to “special or extraordinary expenses” appears in the marginal note to sec-

tion7 of the Federal Child Support Guidelines but the term “special expenses” does not appear

in the body of section 7. Section 7 of the Federal Child Support Guidelines gives the court the

discretion to order payment of an amount over and above the regular table amount. However,

 Middleton v MacPherson, [] AJ No  (QB).

 Federal Child Support Guidelines, SOR/-, s (). For a useful discussion of s  expenses, see Clarke

v Clarke,  BCSC  at paras –, cited in Sea v He,  BCSC ; Cervi v McDonald, 

ONSC .

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Special or Extraordinary E xpenses 279

in order to qualify for a section 7 order, the expenses must be proven to be “special” or “extra-

ordinary” in some way. is is because the basic table amounts of child support are designed

to cover all the “ordinary” costs of raising a child. Food, shelter, clothing, and other neces-

sities are all ordinary, as are many educational, extracurricular, and recreational expenses.3

Recreational sports and other similar extracurricular activities such as dance lessons , com-

munity sports leagues, ski trips, etc., will not generally qualify as special or extraordinary

expenses unless the child’s participation goes beyond that of an ordinary child.4 Special,” as

distinct from “extraordinary,” expenses are generally added more or less as a routine matter,5

provided that they are not unreasonably high,6 but controversy can arise with respect to the

“necessity” for a child to be engaged in extracurricular activities.7

Section 7 of the Guidelines is not presumptive; it indicates that a court may on either

spouse’s request8 provide for an amount to cover all or any portion of the expenses enumer-

ated, which expenses 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.9

e onus is on the parent seeking a contribution to plead and prove the expense.Although

expenses may be estimated, there must be some cogent evidence of a particular expense.10

Failing to consult is generally treated as a relevant — sometimes decisive — factor in gauging

a parent’s exposure to section 7 expenses.11

An order for special or extraordinary expenses under section 7 of the Federal Child Sup-

port Guidelines is not premised on a prior or concurrent order for the payment of the basic

table amount of child support.12 A non-primary residential parent may seek contribution to

a child’s extraordinary expenses for extracurricular activities and the amount ordered may

be set-o against the table amount of child support payable by the non-primary residential

parent.13 While 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.14

 Clarke v Clarke,  BCSC  at paras –, Baird J; TMR v SMS,  NBQB  at para ; MSD

obo NC v AL,  NBQB .

 Santelli v Trinetti,  BCCA  at para , citing Dorey v Havens,  BCCA  at para; Ber-

nardin v Bernardin,  BCSC .

 MSD obo NC v AL,  NB QB ; Slade v Slade, [] NJ No  (CA); VC v JDB,  NSSC . Com-

pare Olaitan v MacDougall,  PECA .

 Sharf v Sharf, [] OJ No  (SCJ).

 MD v PD,  NBKB ; Russell v Russell,  NSSC .

 See H v J,  NBQB  (application by uncle and grandmother).

 Carruthers v Carruthers,   BCSC ; Cook v Cook,  NBQB  citing H v C,  NBQB ;

Bradley v Brooks,  NLTD(F) ; Vantomme v Vantomme,  SKQB .

 Howe v Lorette,  NBQB  at para , Wooder J; see also MR v JR,  NBCA ; MD v PD, 

NBKB .

 Joe-Joe v Joe- Joe,  ABKB  at para , Lema J; see also Meier v Sirman,  ABKB  at para ,

citing AE v AE,  ONSC .

 Whitley v W hitley, [] BCJ No  (SC); Davis v Davis, [] BCJ No  (SC); but see contra

Hannigan v Hannigan, [] BCJ No  (SC).

 Van Bilsen v Van Bilsen, [] OJ No  (SCJ).

 Fisher v Fisher, [] OJ No  (SCJ).

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280   , 

Although child care expenses, medical and dental insurance, health-related expenses,

and post-secondary educational expenses need not be extraordinar y under sections 7(1)(a),

(b), (c), and (e) of the Federal Child Support Guidelines in order to warrant a judicial alloca-

tion, expenses for primary or secondary school e ducation 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.15 All expenses, however, must meet the tests of necessity and reason-

ableness set out in section 7(1) of the Guidelines.16 e onus falls on the applicant who seeks

special or extraordinary expenses under section 7 of the Fe deral Child Support Guidelines to

prove that the expenses are necessary in relation to the child’s best interests and reasonable

having regard to the parental nancial circumstances.17

Eective 1 May 2006, section 7 of the Federal Child Support Guidelines was amended

to promote clarity and consistency in the denition of “extraordinary expenses” under sec-

tions 7(1)(d) and 7(1)(f) of the Guidelines.18 Pursuant to section 7(1.1)(a) of the amende d

Guidelines, expenses are extraordinary if they exceed an amount that the requesting parent

can reasonably cover. In determining whether the expenses are reasonably aordable, 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 ve factors:

• the amount of the expense in relation to the income of the spouse requesting the

amount, including the amount of child support received;

• the nature and number of the educational programs and extracurricular activities;

• any special needs and talents of the child or children;

• the overall cost of the programs and activities; and

• any other similar factor that the court considers relevant.19

ese factors indicate the signicant discretion reposed in the court of rst instance to

determine what is or is not an extraordinary expense based on the evidence before the court.

 Bodine-Shah v Shah,  BCCA ; KKS v JSS,  BCSC ; WL v RW, [] NBJ No  (QB);

Hiscock v Hiscock,  NLTD(F) ; Bocaneala v Bocaneala,  NSSC ; Hoover v Hoover, []

NWTJ No  (SC); MacKinnon v MacKinnon, [] OJ No  (CA); Titova v Titov,  ONCA ;

Beisel v Henderson, [] SJ No  (QB); MDL v CR,  SKCA .

 MA v FHA,  BCSC ; KKS v JSS,  BCSC ; NSC v D C,  NBQB ; Bocaneala v Bocan-

eala,  NSSC ; Williams v Steinwand,  NWTSC ; Titova v Titov,  ONCA ; Zigiris v

Foustanellas,  ONSC ; Beisel v Henderson, [] SJ No  (QB); JC v SAW,  YKSC .

 Hamilton v Hamilton,  BCSC ; MD v PD,  NBKB ; Abbott v Crane, [] NJ No 

(UFC); Mastin v Mastin,  NSSC ; Clark v Clark,   ONSC ; Olaitan v MacDougall, 

PECA ; Carmichael v Douglas, [] SJ No  (QB); MDL v CR,  SKCA .

 S OR/-, s  ( November ), Canada Gazette, Vol , No  ( December ). And

see FJN v JK,  ABCA  at para , leave to appeal to SCC denied  CanLII  (SCC); A M

v GM,  BCSC ; LKS v DMCT,  NSCA . As to ongoing judicial uncertainty and lack of

consistency, see Simpson v Trowsdale,  PESCTD , MacDonald J.

 CJT v GAT,  ABQB ; LAM v SCM,  BCSC ; Beruschi v Muller,  BCSC ; LKS v

DMCT,  NSCA ; Hardayal v Asrula,  ONSC ; MDL v CR,  SKCA ; JC v S AW,

 YKSC .

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