Child Support
Special and Extraordinary Expenses

Introduction
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 entitled - CHILD SUPPORT GUIDELINES - GENERAL INFORMATION before reading this specific information on SPECIAL AND EXTRAORDINARY EXPENSES.

Background
Each parent is liable for the support of their children before and after the 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 between parents who are married and asking 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
Since 1997, child support has been determined in accordance with the Child Support Guidelines under both the federal and provincial laws. 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 tables take into account three factors:
level of income of the paying parent
number of children
province or territory of residence

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 were 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 the average spending patterns on children. The table amount may be increased for special or extraordinary expenses. For example, some children and their circumstances are not average, such that expensive medical dental care is required which is not covered by insurance.

Special and extraordinary expenses can either be agreed upon between the parents, or ordered by a court. In the event that a court is called on to decide the amount of child support, the court has discretion to consider the necessity and reasonableness of these expenses in light of the best interests of the child and means of the parents. If 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. 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.

Future special expenses may be listed in the agreement between the parents. For example, when a married couple with two small children is divorcing, the parents may wish to divide payments for uninsured dental expenses, day care and university tuition.

The Legislation
The table amount may be increased for special or extraordinary expenses (eg. daycare, medical or educational expenses, or extraordinary extra-curricular activities). The Court may "add-on" a portion of these expenses to the table amount.

Section 7 of the guidelines considers six types of add-ons:
1. In a child support order the Court may, on either spouse's request, provide for an amount to cover the following expenses, or any portion of those expenses, 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:
a. child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;
b. that portion of the medical and dental insurance premiums attributable to the child;
c. health-related expenses that exceed insurance reimbursement by at least $100 annually per illness or event, including orthodontic treatment, professional counselling 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;
d. extraordinary expenses for primary or secondary school education or for any educational programs that meet the child's particular needs;
e. expenses for post-secondary education; and
f. extraordinary expenses for extracurricular activities.

2. The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

3. 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.

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 specific categories of expenses as set out in the legislation (and no other expenses) can be "added-on"
i. child-care expenses;
ii. medical and dental insurance premiums that provides coverage for the child;
iii. the child's health-care needs over and above that covered by insurance;
iv. extraordinary expenses related to primary or secondary education;
v. expenses for post-secondary education; and
vi. 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 to "ordinary" and that it meets the tests of necessity and reasonableness. Examples of extraordinary expenses include travel hockey as opposed to house league hockey, competitive as opposed to recreational skiing, driver education training, and in certain situations costs of music and art lessons and memberships in certain organizations. Routine costs to register children in activities will not qualify as an extraordinary expense. A Court will consider
i. the overall cost of the activity;
ii. the income of both parents;
iii. whether the child has unusual talents or disabilities;
iv. the nature of the activity itself.

The higher the income of the support payor, the less likely there will be section 7 expenses ordered, particularly, extraordinary extracurricular expenses. That is because the higher the support payor's income, the higher the table amount and the more the assumption can be made that certain additional expenses are already built into the table amounts as a general principle, each parent shares in the expenses 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 a daycare expense could be deductible as a child care expense for income tax purposes. By this principle, the Court would look at the net amount of the daycare expense to the custodial parent, after consideration of the benefit of the tax deduction, not the gross amount actually paid to the daycare provider.

In making a claim in Court, there must be evidence before the Judge to explain why the expense is necessary in relation to the child's best interests and demonstrating the reasonableness of the expense. Claims for extraordinary extracurricular activities must be itemized with component expenses as not all expenses associated with a given activity will be extraordinary. For example, costs to register child the sport and basic equipment costs may be ordinary while costs of travel to tournaments or specialized training camps may be extraordinary. Claims for clothing disguised as equipment may be entirely disallowed.

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. When one parent enters the new relationship and is presumably sharing living expenses, he or she usually has more disposable income. Some Courts have decided that the second partner's income is irrelevant since new partners have no obligation to pay child support. Some cases have taken into account this greater disposable income in assessing a claim for extraordinary extracurricular activities
if you have a separation agreement or Court Order under the old income tax regime where child support payments are taxable income to the recipient and a deduction for the payor, you cannot bring an isolated section 7 application without changing the entire tax structure. Any variation of the order or agreement after April 30, 1997 will trigger a change in the taxation of the support payments. Before embarking on any variation request, you should be clear that the exercise will be worth the risk of a new income tax structure.

Revision Date: January 11, 2000.

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