Special or extraordinary expenses
Author | Julien D. Payne; Marilyn A. Payne |
Pages | 253-305 |
253
CHAPTER 5
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, provide in a child support
order for the payment of any of the following expenses, or any portion of those expenses,
taking into account the necessit y 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 a nd to the family’s spending pattern prior to the sepa ration:
) child care expenses incurred as a result of the custodial parent’s employment, illness,
disabil ity, or education or traini ng for employment;
) that portion of the medical and dental insu rance premiums attributable to the child;
) health-related expenses that exceed insurance reimbursement by at least annu-
ally per illnes s or event, including orthodontic treatment, professional counsell ing pro-
vided by a psychologist, social worker, psychiatrist or any other person, physiotherapy,
occupational therapy, speech therapy, prescription drugs, hearing aids, glasses, and
contact lenses;
) extraordinary expenses for primary or secondary school education or for any educa-
tional programs that meet t he child’s particu lar needs;
) expenses for post-secondary education; and
) extr aordinary expens es for extracurricu lar activities.
A reference to “special or extraordinary expenses” appears in the marginal note to sec-
tion of the Federal Child Support Guidelines but the term “special expenses” does not
appear in the body of section . Section of the Federal Child Support Guidelines gives
the court the discretion to order payment of an amount over and above the regular table
Middleton v MacPherson, [] AJ No (QB).
Federal Child Support Guidelin es, s ().
254CHILD SUPPORT GUIDELINES IN CANADA, 2020
amount. However, in order to qualify for a section order, the expenses must be proven
to be “special” or “extraordinary” in some way. is is because the basic table amounts of
child support are designed to cover all the “ordinar y” costs of raising a child. Food, shelter,
clothing, and other necessities are all ordinary, as are many educational, extracurricular,
and recreational expenses. “Special,” as distinct from “extraordinary,” expenses are gener-
ally added more or less as a routine matter, provided that the y are not unreasonably h igh,
but controversy can arise with respect to the “necessity” for a child to be engaged in extra-
curricular activities.
Section of the Guidelines is not presumptive; it indicates that a court may on either
spouse’s request provide for an amount to cover all or any por tion 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. 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.
An order for special or extraordinar y expenses under section of the Federal Child Sup-
port Guidelines i s not premised on a prior or concurrent order for the payment of the basic
table amount of child support. A non-prima ry residential parent m ay seek contribution to
a child’s extraordinar y expenses for extracurricular act ivities and the amount ordered may
be set-off against the table amount of child support payable by the non-primary residentia l
parent. While ordering a pro rata sharing of all of the allowable expenses under section
of the Guidelines, a court may order that the mother shall assume the primary respon-
sibility for dealing with certain designated expenditures while the father shall assume the
primar y responsibility for t he others.
Although child care expenses, medical and dental insurance, health-related expenses,
and post-secondary educational expenses need not be extraordinary under sections ()(a),
(b), (c), and (e) of the Federal Child Support Guidelines in order to warra nt a judicial alloca-
tion, expens es for primary or seconda ry school education or for any educat ional programs
that meet a child’s particular needs under section ()(d) of the Guidelines and expenses
for extracurricular activities under section ()(f) of the Guidelines must be extraordin-
ary in order to be allowable. All expenses, however, must meet the tests of necessity and
C larke v Clarke, BCSC at para s –, Baird J; TMR v SMS, NBQB at para .
Slade v Slade, [] NJ No (CA); VC v JDB, NSSC . Comp are Olaitan v MacDougall, PECA .
Sharf v Sharf, [] OJ No (SCJ).
Russell v Russell, NSSC .
See H v J, NBQB (application by uncle and gr andmother).
Carr uthers v Carruthers, BCSC ; Cook v Cook, NBQB citing H v C , NBQB ;
Bradley v Brooks, N LTD(F) ; Vantomme v Vantomme, SKQB .
Howe v Lorett e, NBQB at para , Wooder J.
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).
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).
Special or Extraordinary Expenses 255
reasonableness set out in section () of the Guidelines. e onus falls on the applicant
who seeks special or extraordinary expenses under section of the FederalChild Support
Guidelines to prove that the expenses a re necessary in relation to the child’s best interests
and reasonable having regard to the parental fi nancial circumstances.
Effective May , section of the Federal Child Support Guidelines was amended
to promote clarity and consistency in the definition of “extraordinary expenses” under
sections ()(d) and ()(f) of the Guidelines. Pursuant to section (.)(a) of the amended
Guidelines, expenses are ex traordinary if they exceed an a mount that the requesting parent
can reasonably cover. In determining whether the expenses are reasonably affordable, the
court must consider the income of the requesting spouse and any child support received.
Where section (.)(a) is inapplicable in that the expenses do not exceed an amount that
the requesting spouse can rea sonably cover, the court will determine whet her the expenses
are extraordinar y by taking into account the following five factors:
• the amount of the expense in relation to the income of the spouse requesting the
amount, including the amount of chi ld support received;
• the nature and number of the educational program s and extracurricular activities;
• any special needs and ta lents of the child or children;
• the overall cost of the programs a nd activities; and
• any other similar fact or that the court considers relevant.
ese factors indicate the significant discretion reposed in the court of first instance
to determine what is or is not an extraordinary expense based on the evidence before the
court. An important consideration is the total income of the spouse in receipt of child
support but there is no formula and the court must have regard to the evidence before it
concludes whether all, some, or none of the expenses in sections ()(d) and/or (f) are extra-
ordinary. In LKS v DMCT, it was stated that it is “preferable to deal first with subsection
() [of the Guidelines] to determine whether the expenses are necessary in relation to the
child’s best interests and reasonable in relation to the means of the parents before dealing
with the definition of extraordi nary expenses in subsection (A).”
To qualify as a section expense, the applicant must meet the thresholds stated in sec-
tions () and (A) of the FederalChild SupportGuidelines. In MacDonald v Pink, For-
geron J of the Nova Scotia Supreme Court distilled the following principles from relevant
Nova Scotia ca selaw:
MA v FHA, BCSC ; KKS v JS S, BCSC ; NSC v DC, NBQB ; Bocaneala v B oca-
neala, NSSC ; Williams v Steinwand, NW TSC ; Titova v Titov, ONCA ; Zigiris v
Foustanellas, ONSC ; Beisel v Henderson, [] SJ No (QB); JC v SAW, YKSC .
Hamilton v Hamilton, BCSC ; Newman v Tibb etts, [] NBJ No (QB); Abbott v Crane,
[] NJ No (UFC); Clark v Clark, ON SC ; Olaitan v MacDougall, PECA ; Carmi-
chael v Douglas, [] SJ No (QB).
SOR/-, s ( November ), Canada Gazette, Vol , No ( December ). And see
LKS v DMCT, NSCA .
CJT v GAT, ABQB ; AM v GM, BCSC ; LKS v DMCT, NSCA ; Hardayal v Asr ula,
ONSC ; Hennenfent v Loftsgard, SKQB ; JC v SAW, YKSC .
Gaspers v Gasp ers, SKCA .
NSCA at para ; Boylan v MacLean, NSSC .
NSSC at pa ra ; Fedortchouk v Boubnoy, NSSC .
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