Superior Court Decision Highlights Limits on Special and Extraordinary Expenses in Family Law Cases

February 3rd, 2016 by

One of the frequently asked questions when parents separate is how much child support will I have to pay? While the amount of base child support is determined by reference to the Child Support Guidelines tables, there are amounts above and beyond base child support that can be payable, known as ‘special and extraordinary expenses.’ In  Jakymiw, Justice Harper provides an excellent primer on special and extraordinary expenses, and an excellent example of how courts can deal with special and extraordinary expense claims.

That case, like most others, arose in the context of a separation. The parties had one child, who resided with the mother, and for whom the father paid child support. In addition to base child support, the mother claimed that she was owed $13,000.00 to cover special and extraordinary expenses such as horse riding lessons, horse camp, the cost of a passport and a trip to Italy. The father resisted, arguing that such expenses fell well outside the ambit of proper special and extraordinary expenses.

Justice Harper began his review with section 7 of the Child Support Guidelines, which governs special and extraordinary expenses. While ss.7(1)(a)(b)(c) and (e) define, with some precision, what constitutes a special expense, extraordinary expenses is somewhat more a term of art. Section 7 defines extraordinary expenses as those which exceed what a payee parent could reasonably cover or those the court otherwise feels are extraordinary, and under s.7(d) and (f), a payor parent may have to contribute to extraordinary educational or extra-curricular activities. It was the latter which was the crux of the issue in Jakymiw.

Turning from s.7 of the Guidelines, Justice Harper considered the Court of Appeal decision in Andrews, which set out the test for an expense to properly qualify under s.7. To qualify as an extraordinary expense, the expense:

  1. must be extraordinary (within the meaning of the Guidelines);
  2. must be necessary in relation to the best interest of the children; and
  3. must be reasonable having regard to the means of the parents and their spending patterns for the children during cohabitation.

Justice Harper then considered what was a ‘reasonable’ expense under the third prong of the Andrews test. Seeking wisdom from Correia, a decision of the Manitoba Court of Queen’s Bench, Justice Harper outlined a number of factors to be considered when assessing the reasonableness of a s.7 expense, such as:

  1. the combined income of the parties;
  2. the fact that two households must be maintained;
  3. the extent of the expense in relation to the parties’ combined income levels;
  4. the debt position of the parties;
  5. any prospect for a decline or increase in the parties’ means in the near future, and;
  6. whether the payor parent was consulted regarding the expenditure prior to the expense being incurred (although Justice Harper found that the prior consent of the parent was not necessary to be considered a s.7 expense)

Having established the statutory and jurisprudential footing, Justice Harper turned to whether the expenses claimed were reasonable and necessary. He found that dance class, swimming lessons and orthodontic expenses were easily s.7 expenses, he took issue with some of the others. He found that horseback riding lessons were s.7 expenses, as the child enjoyed them and excelled at it, but found that riding camp was not. Similarly he found that a trip to Italy, though “very good and exciting for the child” was not a legitimate s.7 expense. As well, he found that the cost of a passport and expenses related to the child’s confirmation were not legitimate s.7 expenses.

While a fairly straight-forward case and only one of many dealing with s.7 expenses, the decision in Jakymiw highlights some issues that child support payors and recipients should always be aware of. Payors should be aware that they can be obligated to contribute to s.7 expenses that they don’t agree with or consent to. Payees should know that just because an educational or extracurricular expense has been incurred for their child, it may not qualify as a s.7 expense. However, both payors and payees should take steps to identify and clarify their child support rights and obligations if and when they may arise.

If you have an issue related to the payment of child support, or any family law issue, contact the experienced family law team at Devry Smith Frank LLP.


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