In addition to Guideline child support a parent may also be required to pay what are known “special expenses” or “section 7 expenses.”
Claims for special expenses are brought under section 7 of the Child Support Guidelines:
7. Special or extraordinary expenses
In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking 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 parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:
child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;
that portion of the medical and dental insurance premiums attributable to the child;
health-related expenses that exceed insurance reimbursement by at least $100 annually, 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;
extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
expenses for post-secondary education; and
extraordinary expenses for extracurricular activities.
1.1 Definition, “extraordinary expenses”- For the purposes of clauses (1)(d) and (f),
“extraordinary expenses” means
expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent’s or spouse’s income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or
where clause (a) is not applicable,expenses that the court considers are extraordinary taking into account,
the amount of the expenses in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
the nature and number of the educational programs and extracurricular activities,
any special needs and talents of the child,
the overall cost of the programs and activities, and
any other similar factors that the court considers relevant.
Sharing of expense- The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.
Subsidies, tax deductions, etc.- Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.
Universal child care benefit- In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit.
The list of special and extraordinary expenses under clauses 7(1)(a) to (f) is exhaustive, and so if a claim does not fall within any of the listed categories it cannot be allowed. All special expenses must meet the tests of necessity and reasonableness set out in subsection 7(1) of the Guidelines. The onus falls on the parent who seeks special or extraordinary expenses under section 7 to prove that the claimed expenses fall within one of the categories and that the expenses are necessary in relation to the child’s best interests and are reasonable having regard to the parental financial circumstances. A parent does not have the right to enroll a child in any number of extra-curricular activities and then to look to the other parent to share all of the costs. It is important to note that expenses for usual or ordinary extracurricular activities for a particular family are included in the table amount of support.
An order for contribution to special or extraordinary expenses under section 7 of the Guidelines is discretionary as to both entitlement and amount, and so the court must first determine the issue of entitlement for a particular expense. A review of the case law shows that not all judges agree on what constitutes reasonable and necessary extracurricular expenses.