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 .