Updated: Sep 22, 2022
Parents have a legal obligation to financially support their dependent children, whether they live with them full time, part time or not at all. A separation or divorce does not change that.
When parents divorce, one often has to pay child support to cover the costs associated with their child’s living expenses, such as food, clothing, school supplies and other basics.
The table amount of child support set out in the federal and provincial guidelines is based on the number of children, the province or territory in which the paying parent lives and the paying parent’s annual income. Parents can agree on a different amount of child support, but if they ask the court to decide, the amount will be set according to the guidelines.
Judges sometimes take unusual steps to ensure that a parent will fulfil their support obligations. In a recent case, an Ontario judge ordered a father to purchase a life insurance policy as security for his child support responsibility.
In addition to paying a fixed amount of basic child support, a parent may also have to contribute to additional costs, Section 7 expenses, if a court determines they are necessary and reasonable for the child. For couples that have a separation agreement, Section 7 expenses are outlined in the financial area of the agreement.
In this post, I’ll explain what the law states around Section 7 expenses and provide some common scenarios we see in family court cases.
What are special or extraordinary expenses?
Special or extraordinary expenses refer to additional costs that are not covered in the basic monthly amounts of child support, which may include:
Child-care expenses you must pay as a result of a job, illness, disability or educational requirements for employment
Health-care expenses not covered by insurance, such as orthodontics, medication and counselling
The portion of your medical and dental insurance premiums that provide coverage for your child
Expenses for your child’s primary, secondary, post-secondary or other educational programs
Expenses for your child’s extracurricular activities.
In assessing claims for Section 7 expenses, the court will consider three guidelines:
Is the expense necessary?
Is it reasonable given the parents’ means?
Is it consistent with the family’s lifestyle before the parents’ separation?
So, it’s not the expense alone but the parties’ ability to afford it and whether it makes sense in a family’s particular situation that matter.
A judge may not approve one parent’s request for a child’s swimming lessons, but in a family whose children spend summers at the cottage, the expense would likely be approved. Similarly, the parent of a child who lives in a rural area may be able to make the case for driving lessons. Increasingly in family law, we see requests for religious education or ceremonies being approved as Section 7 expenses.
What if you think your daughter is the next Hayley Wickenheiser but your co-parent isn’t willing to share the associated expenses? Costs for hockey can be very high, involving equipment, fees and travel during the playing season. Beyond the three guidelines above, the court will also consider if the child wants to continue with the activity, how well they perform in the sport and how many other activities they’re involved in. Overprogramming of children is an issue that sometimes comes up in family court.
Historic case for Gottlieb Law Firm
Many years ago, I worked on one of the first cases involving Section 7 expenses, which involved horseback riding lessons for the divorcing couple’s child. My client argued that, despite the cost, horseback riding had been a long tradition in her family and something she and her child’s other parent could afford. The judge agreed.
The guidance stemming from that case still holds: If the activity was considered typical for the intact family, the court will often order that it continue after separation unless it causes financial hardship for a parent.
Who pays and how much?
Expenses for education or extracurricular activities are considered extraordinary only if they are more than you can reasonably pay based on your income and the amount of child support you receive or it is not more than you can reasonably pay but is extraordinary considering:
Your income and the amount of child support you receive
The nature and number of educational programs and extracurricular activities
The overall cost of the programs and activities
Any special needs and talents of the child.
Parents share special and extraordinary expenses in proportion to their incomes. For example, if one parent earns $100,000 per year and the other earns $200,000, Section 7 expenses are shared one-third and two-thirds, respectively.
It’s important to point out that the onus falls on the parent who is requesting a contribution from their co-parent to prove that the expense falls under the Section 7 expense guidelines. Don’t sign your child up for an activity expecting that your co-parent will share in the expense. You need their consent or a court order.
In a recent case, an Ontario judge approved more than $35,000 in special and extraordinary expenses related to caring for a child with special needs. The 12-year-old boy, who has autism and is a high-needs child, has been in the sole care of his father since 2017. During that time, the father has incurred significant expenses related to physiotherapy, occupational therapy, massage therapy, chiropractic therapy, counselling, dental and orthodontic expenses, child-care costs, sporting activities (swimming, karate, ice hockey, ball hockey, baseball, gym) and a private residential school.
Typically, the court will look at each parent’s income to determine how Section 7 expenses should be shared. In this case, that was not possible because the mother, who is experiencing mental health issues according to court documents, had not yet “fully” complied with a court order for financial disclosure. Once the court can determine her income, it will apportion costs accordingly.
If you are facing separation or divorce, it’s important to map out a plan for your children as early in the process as possible. If you would like to understand your options, schedule a consultation with me.
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