CHILD SUPPORT GUIDELINES:
SPECIAL AND EXTRAORDINARY EXPENSES

In this series of pamphlets we help you to understand how an appropriate amount of child support is determined when parents separate. It would be helpful to read the pamphlet - Child Support Guidelines - General Information before reading this information. You may need to discuss the specific facts of your situation with us to ensure that you have all the legal advice relevant to your situation.

Background
Parents are liable for the support of their children before and after separation. In Ontario, there are 2 laws that govern how the appropriate amount of child support is determined. The Divorce Act is a federal law that governs divorce proceedings. It provides for child support when parents are married and ask for support as part of their divorce. The Family Law Act is an Ontario law. It provides for child support between parents when child support is an issue, but not as part of a divorce.

The Child Support Guidelines
In 1997, governments changed the way child support is to be determined. The guideline system now applies to all support cases in Ontario Courts. The guidelines consist of a set of rules and tables to calculate the amount of support that a paying parent should contribute toward his or her children. The guidelines presumptively set the amount of support payable by a table. The table amount is based on the payor's income with no consideration of either the recipient's income or the actual expenses of the children. There are some situations where the tables do not apply or where a table amount can be increased or decreased.

Special and Extraordinary Expenses
The amounts in the tables are based on average spending patterns on children. Some children and their circumstances are not average, requiring expensive medical dental care, for example, which may not be covered by insurance. The table amount may be increased for special or extraordinary expenses. The guidelines create six categories of these expenses that may be added on.

Courts have discretion to consider the necessity and reasonableness of these expenses in light of the best interests of the child and means of the parents. In the event that the parents are able to agree, they are free to decide whether a special expense is reasonable and necessary, whether it should be added to the basic table amount and how much each parent will contribute. The special expenses, even those expected years later, may be listed in the agreement between the parents. As a general rule, each parent shares in the expense in proportion to his or her income, but the parents may agree to any other method of dividing payment.

The Legislation
Section 7 of the guidelines provides:
In a child support order the Court may, on either spouse's request, provide for an amount to cover all or any portion of the following expense, 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, having regard to the means of the spouses and those of the child and to the family's spending pattern prior to the separation:
• 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 counseling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and 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.

Points to Note About the Legislation
• the Court has discretion in the consideration of "add-on" expenses -- a Court may make an order - this means the Court does not have to make an order and judicial discretion plays a major role. Circumstances dictate whether discretion will be exercised one way or the other
• the Court may make an order to cover the expense or any portion of the expense
• only the six categories of expenses as set out in the legislation (and no other expenses) can be "added-on"
• child-care expenses;
• medical and dental insurance premiums that provides coverage for the child;
• the child's health-care needs over and above that covered by;
• extraordinary expenses related to primary or secondary education;
• expenses for post-secondary education; and
• extraordinary expenses for extracurricular activities.
• the expense must be reasonable, having regard to the means of the spouses and of the child and the family's established spending pattern prior to separation. What is reasonable and necessary in one family may not be reasonable and necessary in another.
• the expense must be necessary in relation to the best interests of the child
• the word "extraordinary" is not defined. Courts across Canada have adopted different approaches. Since the table amount takes into account average spending, courts have presumed that "ordinary" activity costs are included in the table amount. A party claiming an extraordinary extracurricular expense must prove to the Court that it is "extraordinary" as opposed "ordinary" and that it meets the tests of necessity and reasonableness. A Court will consider the overall cost of the activity, the income of both parents, whether the child has unusual talents or disabilities and the nature of the activity itself.
• as a general principle, each parent shares in the expense in proportion to his or her income after appropriate contribution by the child; but, given the discretionary language of this section, there is no requirement that the full expense always be shared precisely in proportion to the parents' respective incomes
• to determine the amount, a Court will take into account any subsidies, benefits or income tax deductions or credits relating to the expense. For example, daycare expense is deductible as a child care expense for income tax purposes. The Court would look at the after tax amount of the daycare expense to the custodial parent and consider the benefit of the tax deduction, not simply the gross amount actually paid to the daycare provider
• there must be evidence before the Judge to explain why the expense is necessary in relation to the child's best interest and demonstrating the reasonableness of the expense
• Courts have noted that it is not open to a parent to select any recreational activity, regardless of the cost, and then demand that the other parent contribute. A custodial parent would be better to seek agreement for a section 7 expense before it is incurred. If agreement is unreasonably withheld, the applicant will be in a better position to make the claim
• there are inconsistent cases on whether the income of a new partner should be taken into account under section 7. Some Courts have decided that the second partner's income is irrelevant since new partners have no obligation to pay child support. The new partner's income may be indirectly relevant because when one parent enters the new relationship and is presumably sharing living expenses, the parent usually has more disposable income. Some cases have taken into account this greater disposable income in assessing a claim for extraordinary extracurricular activities
If you are paying or receiving child support or if you are asking for or being asked to pay child support, you should speak to a lawyer regarding your individual circumstances. Your choice of legal counsel is a critical and personal decision. The firm you select should be committed to your business and personal needs.

Revision Date: 04/02/01

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NOTE: This brochure provides general information and is not intended to be a legal opinion. Readers are cautioned not to rely on this information without obtaining legal advice with respect to their own circumstances.