CHILD SUPPORT AND EXTRAORDINARY EXPENSES
By DOUGLAS J. MANNING,
Family Law Department
In our earlier newsletter, we discussed the enactment of
child support legislation that established the amount of
child support based on the income of the support payor and
the number of children under the age of majority for whom
support was sought.
We also discussed that the court could "add-on"
additional support for the expenses that are necessary in
regards to the child’s best interests taking into account
the reasonableness of the expense and the financial means
of the spouses. The type of expenses to be included in these
considerations are: child care expenses incurred as a result
of the custodial parent’s employment, medical and dental
insurance premiums, health-related expenses, extraordinary
expenses for primary or secondary school education, expenses
for post secondary education or extraordinary expenses
for extracurricular activities.
There had been much debate amongst family law lawyers as
to what exactly would make up "extraordinary expenses"
for education or for extracurricular activities. Would this
include expenses for school books, gym uniforms, school
uniforms, field trip expenses, music lessons, tutoring,
figure skating, hockey, gymnastics, baseball registrations
and equipment, etc.?
Now, two Court of Appeal decisions from Manitoba and Nova
Scotia have brought some guidance as to what type of expenses
are to be "added on" as "extraordinary".
For an expense to be an "add on" it must be one
which is not a usual expense in the circumstance. To see
if a particular cost is an "extraordinary" expense,
we look to see if the cost itself is unusually high for
the particular activity. You do not look at the financial
means of the parties initially.
Remember that the amount of basic support increases as
the income of the payor increases in order to attempt to
maintain a standard of living for the children that is close
to the standard of the family unit when it was together.
You would anticipate that higher income families might include
in their extracurricular activities such things as ski memberships,
summer camps, etc. for the children. Thus, such expenses
are, to a degree, built into the basic amount of support
found in the child support tables and thus, are not considered
to be extraordinary in the context of the family’s
lifestyle.
In one of the Court of Appeal decisions, the expenses which
the mother sought to add on were for swimming, soccer, tae
kwondo, school activities, birthdays, Christmas and special
events. In the other case, the expenses were for travel
to baseball games and for school sports. These are the sorts
of expenses that often arise within families.
The Court ruled that an expense for an extracurricular
activity is extraordinary only when it is out of proportion
to the usual costs associated with the particular activity.
So, for example, if the average cost of skiis is $500.00,
then purchasing skiis for this amount would not be extraordinary.
However, if the skiis had to be modified to accommodate
a physical handicap and the expense is $800.00, then this
would be an extraordinary expense.
This approach allows for the award of additional support
in special situations such as special needs children whether
they are gifted or require remedial assistance.
The question in one of the cases was whether the father
should be ordered to contribute to extra-curricular expenses
for swimming, soccer, tae kwondo, school activities and
birthdays, Christmas and special events. The court ruled
that these were not extraordinary as the applicable table
amounts of support are based upon an average of what parents
at various income levels spend on children.
The other categories of add on expenses - child care costs,
the child’s portion of medical insurance premiums and
expenses for post secondary education do not require an
examination of whether or not they are to be considered
extraordinary. The court must be satisfied as to the necessity
of the expense and the reasonableness of the expense having
regard to the means of the parents and child and to family’s
spending pattern prior to the separation.
<-Back
The above is not intended to constitute
legal advice. Please contact a lawyer to clarify your
legal rights.
