Section 7 of the Federal Child Support Guidelines – Special or Extraordinary Expenses

This section provides for the payor to pay additional monies to the recipient, over and above base child support, to “cover all or any portion” of the “special or extraordinary expenses” for the child.  The preamble of section provides that the expenses may be “estimated”.

However, it is my experience that if you are seeking contribution for past “special or extraordinary expenses” it is important to have receipts.  Furthermore, if it is the intention that the Family Responsibility Office is to enforce the payment of extraordinary expenses, it is important to provide in a court order or Agreement that the actual amount to be paid and not the percentage to be paid.

Not all “extracurricular activities” qualify as “extraordinary expenses”

The preample for the section also provides that it determining whether or not an expense is “special or extraordinary” the court must take into account the “necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation”. This is an important two part test. Therefore, not all “extracurricular activities” or education expenses may qualify as “extraordinary expenses”.

In relation to “primary and secondary school education” and “expenses for extracurricular activities” the expense must be “extraordinary” to be included in the child support amount. This is meant to qualify the expense not the activity. In order to be qualified as “extraordinary” these type of expenses must “exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover taking into account that spouse’s income and the amount that the spouse would receive under the applicable table”.

In the alternative, expenses can also be extraordinary, “even if they do not exceed that which a spouse can cover with base support” if they are extraordinary having regard to “the amount of the expense in relation to the income of the party requesting the amount”, the “nature and number of educational programs and extracurricular activities”, the “special needs and talents of the child or children” or “the overall cost of the program and activities” and “any other similar factor that the court considers relevant”.

Section 7 lists certain expenses that are considered “special or extraordinary” namely as follows:

1. child care expenses – they will be considered extraordinary if they are incurred as a result of the recipient’s employment, illness, disability or education or training for employment;

2. portion of medical or dental insurance premiums that are attributable to the child;

3. health related expenses that exceed insurance reimbursement – this is usually in relation to orthodontic expenses;

4. extraordinary expenses for educational programs – primary and secondary school;

5. expenses for post-secondary education;

6. extraordinary expenses for extracurricular activities;

Although the Act sets out the list of the type of expenses that are considered extraordinary, the determination of the amount of contribution and whether or not the claimed expense is “extraordinary” is not always as simple as it looks.

In determining the amount of the extraordinary expense to be divided as between the parties, the parties must take into account the following:

1. any “subsidies, benefits or income tax deductions or credits relating to the expense”;

2. any “eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense”; and,

3. any “contribution from the child towards the expense”.

The parties then determine the net amount of the expense, after considering the aforementioned, and then share the expense in proportion to their respective incomes.

It is important to remember that the net cost of the expense is shared and not the gross amount of the expense.

This section is frequently an issue between the parties.  Our Toronto family lawyers would be pleased to assist you to address your rights and obligations with respect to paying for extraordinary expenses for your child. If you have any questions regarding family law, or require a divorce lawyer, feel free to contact us today. We welcome any inquiries.