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Unravelling Section 7 Expenses
The most common questions about child support involve what exactly this monthly payment is intended to cover.
While this payment is typically seen as a contribution towards a child’s most basic expenses (food, housing, clothing), confusion often arises about how these payments relate to other expenses – such as hockey, swimming lessons, back-to-school supplies, driving lessons – and even prom dresses.
In addition, even if the parents do agree to share something like hockey expenses, they may disagree on what “hockey expenses” encompass – does it refer to registration fees, uniforms, equipment, skate sharpening, power skating lessons, and gas and hotels for out of town tournaments? Unfortunately, this confusion often leads to conflict and distrust between parents.
Overview of Child Support
To help address this confusion, a brief summary of child support is beneficial. Overall, the Federal Child Support Guidelines and the Ontario Child Support Guidelines distinguish between two types of child support payments, being:
“Basic Monthly Amount” or “Table Amount”, which is paid in accordance with child support tables; and
“Section 7 Expenses” or “Special and Extraordinary Expenses”, which is paid in addition to the above amount in regards to any “special or extraordinary expenses” related to the children.
As a result a parent may be required to pay both a fixed Basic Monthly Amount of child support – and also contribute to Section 7 Expenses – under the Child Support Guidelines.
What are Section 7 Expenses?
Generally speaking, the Child Support Guidelines define “special or extraordinary expenses” as expenses that are:
Necessary because they are in the child’s best interests; and
Reasonable given the means of the parents and the child and in light of the family’s spending patterns before the separation.
The Child Support Guidelines also defines Section 7 Expenses as:
Child-care expenses that you may have to pay as a result of a job, an illness, a disability, or educational requirements for employment if your child spends most of the time with you;
The portion of your medical and dental insurance premiums that provides coverage for your child;
Your child’s health-care needs that exceed $100 per year if the cost is not covered by insurance (for example, orthodontics, counselling, medication or eye care);
Expenses for post-secondary education;
Extraordinary expenses for your child’s primary education, secondary education or any other educational programs that meet your child’s particular needs; and
Extraordinary expenses for your child’s extracurricular activities.
A Family-Specific Analysis
However, not every out-of-pocket expense is a proper Section 7 Expense. Even if an expense falls within the above list, the court still has to determine if the expense is necessary and reasonable.
The court has significant discretion when assessing whether or not something is a proper Section 7 Expense. When assessing whether an expense is necessary and reasonable, a judge will typically seek information including:
A description of the proposed expense, such as tutoring lessons with a particular individual or company;
The amount of the proposed expense, such as a cost-estimate, invoice, or receipt;
Specifics about why the expense is necessary for the child’s best interests, such as the child’s report card or referral from a health care provider; and
Details about why the expense is reasonable in consideration of the family’s finances, such as the Basic Monthly Amount being paid, the incomes and means of the parents, and consideration of the family’s spending patterns before separation.
The parent who is seeking a contribution from the other parent has the onus to prove that the expense is a Section 7 Expense.
Seeking and Providing Consent to Expenses
A standard term in a family court Order or Separation Agreement is that “[p]roper s. 7 expenses shall be agreed upon by the parties in writing in advance, and the consent of each not to be unreasonably withheld.” This term ensures that both parties have advance notice of any expenses so that they can plan their finances accordingly. As a result, best practises are that:
A parent proposing an expense should notify the other parent in writing, and seek their consent in advance of incurring any costs; and
A parent receiving such a proposal should thoughtfully consider if the expense is necessary and reasonable, and be cautious about withholding consent.
If the parties cannot agree on whether or not an item is a proper Section 7 Expense, or whether or not consent is being unreasonably withheld, they may need to seek the guidance of the court, mediator, parenting coordinator, or other family law professional.
Examples of Section 7 Expenses
What may qualify as a Section 7 Expense for one family (with a lower household income and several children) may not qualify for another family (with a higher household income and only one child). It is a contextual analysis, and the determination will depend on your family’s circumstances and the evidence submitted for the court’s consideration.
While every family’s circumstances are unique, some interesting examples of expenses that have (and have not) been found to be Section 7 Expenses for various families include the following:
Pony – declined. The father made a unilateral decision to buy a pony for a child who had therapeutic needs; however, there was no medical evidence to support that the purchase was necessary for medical reasons (Kuzik v. Kuzik, 2010);
Criminal Defense Expenses for Child – declined. The 19 year old child was charged with driving under the influence and possession of narcotics. The mother paid over $10,000 to help defend the charges and pay penalties; however, there was no evidence that the father was properly consulted before these costs were incurred (Vidal v. Dunn, 2018);
Driver’s Education Course – approved. Expenses for a 19 year old child, totalling $565.00, were deemed necessary and reasonable (Vidal v. Dunn, 2018);
Graduation Costs – declined. Costs sought for a Grade 12 graduation for hair, nails, and related expenses were not deemed as proper (Vidal v. Dunn, 2018);
Ski Lessons, Travel Expenses – approved. This family enjoyed a lavish lifestyle and regularly went into debt in order to fund it. The children were accustomed to a lifestyle that included expenditures for private school tuition, ski and soccer lessons, travel expenses, car rentals and summer camp (Gibson v. Gibson, 2011);
Child Care Expenses when Other Parent Available – declined. Father was not required to contribute to child care expenses as he was available to care for children after school, but mother preferring to use day care (Woode v. Woode, 2002);
Overtime Pay to Nanny – declined. The mother was employing a nanny who did not reside within the home. While her general expenses for the nanny were reasonable, overtime hours paid to nanny were not. These expenses could have been covered in a less costly manner by employing another caregiver (Marsh v. Gibson, 2011);
Non-Lactose Products for Child – declined (Masotti v. Masotti, 2002);
Stem Cell Treatment – declined. Further stem cell treatment was not found to be in the child’s best interests, and the expense was not seen as reasonable when considering the means of the parents (Schryver v. Schryver, 2013).
Family Law Consultation
If you are separated or divorced and dealing with section 7 or “special and extraordinary expense” issues in a family law matter, our family lawyers at McKenzie Lake LLP can help. Please contact us to set up a consultation so that we can discuss your concerns and strategies for moving forward.