Special or Extraordinary Expenses
| Author | Julien D. Payne - Marilyn A. Payne |
| Pages | 245-293 |
SPECIAL OR EXTRAORDINARY
EXPENSES1
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 t he means of the spouses or former
spouses and those of the child a nd to the family’s spending pattern prior to t he separation:
(a) child care ex penses incurred as a result of the cu stodial parent’s employment, illness,
disability, or education or traini ng for employment;
(b) that portion of the med ical and dental insurance premiums attributable to the chi ld;
(c) health-related expenses that exceed insura nce reimbursement by at least annually
per illne ss or event, including orthodontic treatment, professional counsel ling provided
by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occu-
pational therapy, speech therapy, prescription drugs, hearing aids, gla sses, and contact
lenses;
(d) extraordinary expenses for primar y or secondary school education or for any educa-
tional programs that meet t he child’s particu lar needs;
See Elizabe th Jollimore, “A Practitioner’s Guide to Presenti ng Applications under Sect ion of the Federal
Child Support Guidelines” (Pap er presented to the Federation of Law Societ ies, National Family L aw
Program, Muskoka, Ont ario, July ); Melanie Kraf t & Philip M. Epstein, “e E xtraordinary I nter-
pretations of Sect ion of the Guidelines” in Syr tash Collection of Fam ily Law Articles in Com mentary
on Quicklaw, SFLRP/-; Jim M. Stoffman, “ Special or Extraordi nary Expenses” i n Syrtash Collec-
tion of Family L aw Articles in Commenta ry on Quicklaw, SFLRP/-; see also Len Fish man, “
Amendments to the Federal Child Suppor t Guidelines,” Department of Justice C anada, online: ww w.
justice.gc.ca/eng/pi/fcy-fea/lib -bib/tool-util/topic-theme/feda.html.
Middleton v. MacPherson, [] A.J. No. (Q.B.).
CHILD SU PPORT GUIDELINES IN CA NADA,
(e) expenses for post-secondary education; and
(f) extraordinary expense s for extracurricul ar activities.
A reference to “special or extraordinary expense s” appears in the margi nal note to sec-
tion of the Federal Child Support Guidelines, but the term “special expens es” does not
appear in the body of section . “Special,” as distinct f rom “extraordinary,” expenses are
generally added more or less as a routine matter, provided that they are not unreas onably
high.
Section of the Guidelines is not presumptive; it indicates that a cour t may, on either
spouse’s request, provide for an amount to cover all or any portion of the expenses enumer-
ated, which may be estimated tak ing 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 a nd to the family’s spending pattern prior to separation.
An order for special or extraordinar y expenses under section of the Federal Child
Support Guidelines is 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 may seek contribu-
tion to a child’s extraordinary expenses for extracurr icular activities and the amount or-
dered may be set-off against the table amount of child support payable by the non-primary
residential pa rent. While ordering a pro rata sharing of a ll of the allowable expenses under
section of the Guidelines, a court m ay order that the mother shall assume the pri mary re-
sponsibility for dealing w ith certain designated expenditures whi le the father shall assume
the primary responsibi lity for the others.
Although child care expenses, medical and dental in surance, health-related expenses,
and post-secondary educational expenses need not be ext raordinary under sec tions ()(a),
(b), (c), and (e) of the Federal Child Support Guidelines in order to warra nt a judicial alloca-
tion, expens es for primar y or secondary school education or for any educational programs
that meet a child’s particu lar needs under section ()(d) of the Guidelines and expenses for
extracurricu lar activities under section ()(f) of the Guidelines must be extraordi nary in
order to be allowable. All expenses, however, must meet the tests of necessity a nd reason-
ableness set out in section () of the Guidelines. e onus falls on the applicant who seeks
special or extraordina ry expenses under section of the Federal Child Support Guidelines
Federal Child Support Guidelines, s. ().
Slade v. Slade, [] N.J. No. (C.A.); V.C. v. J.D.B., NSSC .
Sharf v. Sharf, [] O.J. No. (S.C.J.).
C.L. v. S.F., NBQB .
Whitley v. Whitley, [] B.C.J. No. (S.C.); Johnson v. Johnson, [] B.C.J. No. (S.C.); Davis v.
Davis, [] B.C.J. No. (S.C.); but see contra Hannigan v. Hannigan, [] B.C.J. No. (S.C.).
Van Bilsen v. Van Bilsen, [] O.J. No. (S.C.J.).
Fisher v. Fisher, [] O.J. No. (S.C.J.).
Calcada v. Ferreira, [] B.C.J. No. (S.C.); D.I. v. S.I ., BCSC ; W.L. v. R.W. , [] N.B.J.
No. (Q.B.); Murphy v. Murphy, [] N.J. No. (S.C.); Lockerby v. Lockerby, NSSC ; Turple
v. Turple, NSSC ; Hoover v. Hoover, [] N.W.T.J. No. (S.C.); MacKinnon v. MacKinnon, []
O.J. No. (C.A.) (child care expen ses); Marion v. Binch, [] O.J. No. (S.C.J.); Beisel v. Hender-
son, [] S.J. No. (Q.B.).
Calc ada v. Ferreira, ibid.; M. A. v. F.H.A., BCSC ; L.J.M. v. G.S. M., [] N.B.J. No. (Q.B.);
Lockerby v. Lockerby, ibid .; N.S.C. v. D.C., NBQB ; Gagnon v. Gag non, NSSC ; Beisel v.
Henderson, ibid.
Special or Ex traordinary Expense s
to prove that the expenses are necessar y in relation to the child’s best interests and reason-
able having regard to the parental fina ncial circumstances.
Effective May , , section of the Federal Child Support Guidelines was amended
to promote clarity and consistency in t he definition of “extraordinary ex penses” under sec-
tions ()(d) and ()(f) of the Guidelines. In Fras s v. Frass, Sandomirsky J., of the Saskatch-
ewan Court of Queen’s Bench, stated that he did “not believe that the ‘reasonable coverage’
definition contained in the May , amendment is new law. At best, it is a single test
now enunciated in legislative form which should provide for more consistency and predict-
ability as opposed to the ma ny attempts to articu late a definition of extraordina ry which is
found in the case law.” Pursuant to section (.)(a) of the amended Guidelines, expenses are
extraordinar y if they exceed an amount that the requesting parent can reasonably cover. In
determining whether the exp enses are reasonably affordable, the court must consider the
income of the requesting spouse and any chi ld support received. Where section (.)(a) is
inapplicable in that the expenses do not exceed an amount t hat the requesting spouse can
reasonably cover, the court will determine whether the expenses are extraordinar y by tak-
ing 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 activit ies,
• any special needs and ta lents of the child or children,
• the overall cost of the programs a nd activities, and
• any other similar factor t hat the court considers relevant.
ese factors indicate the significa nt discretion reposed in the court of first insta nce to de-
termine what is or is not an extraordi nary expense based on the evidence before the court.
An important consideration is the tota l 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 sect ions ()(d) and/or (f) are extraordinary.
To qualify as a section expens e, the applicant must meet the thresholds stated in
sections () and (A) of the Child Support Guidelines. In MacD onald v. Pink, Forgeron
J., of the Nova Scotia Supreme Court, distil led the following principles from relevant Nova
Scotia case law:
a. Se ction of the Guidelines provides t he court with the juri sdiction to grant a d iscre-
tionary awa rd.
Hamilton v. Hamilton, BCSC ; Newman v. Tibbetts, [] N.B.J. No. (Q.B.); Abbott v. Crane,
[] N.J. No. (U.F.C.); Giammarco v. Moccia, [] O.J. No. (S.C.J.); Zimmerman v. Doe,
[] O.J. No. (S.C.J.); Clark v. Clark, ONSC ; Carmichae l v. Douglas, [] S.J. No.
(Q.B.).
SOR/-, s. (November , ), Canada Gazette, Vol. , No. (December , ). See
also Len Fish man, “ Amendments to the Federal Child Support Gui delines,” Department of Justice
Canada, onli ne: www.justice.gc.ca/eng/pi/fcy-fea/l ib-bib/tool-util/topic-theme/feda.html. A nd see
D.M.C.T. v. L.K.S., NSCA .
[] S.J. No. at para. (Q.B.). Compare Marion v. Binch, [] O.J. No. at para. (S.C.J.).
M.L.M. v. A.M., BCSC ; D.M.C.T. v. L.K.S., NSCA ; Lockerby v. Lockerby, NSSC ;
Turple v. Turple, NSSC ; Gibson v. Gibson, ONSC ; Matlock v. Matlock, SKQB .
Gaspers v. Gaspe rs, SKCA ; H.A.K. v. T.J.W., SKQB .
NSSC at para. [references om itted].
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