As we navigate the waning summer days, many parents are eager to enroll their children in activities that provide them with meaningful experiences to tide them over to the new school year. Camp and other extracurricular activities like soccer, gymnastics, tennis, basketball, and a host of others provide an ideal solution for parents juggling busy work schedules and limited vacation time.
The decision to enroll children in these activities is often second nature, but co-parents should do their homework before enrolling children without the consent of their former spouse. Summer camps and similar activities like athletic camps are not always considered extraordinary expenses under the Federal Child Support Guidelines ("Guidelines"). Determining what constitutes an "extraordinary" extracurricular expense requires a nuanced assessment under section 7(1.1) of the Guidelines. Parents can prevent conflict by negotiating a Separation Agreement that stipulates exactly which special and extraordinary expenses the parties have agreed to pay for the future. This ensures predictability and promotes stability for the children.
In Ontario, child support falls into two categories under the Guidelines:
The Table Amount (s. 3): A basic monthly amount based on the number of children, the parenting schedule, and the income of the payor(s); and
Special and Extraordinary Expenses (s. 7): An amount paid to reimburse, on one or both spouses’ request, to cover special and extraordinary expenses that are not covered by the basic table amount.
Section 7 of the Guidelines provide the framework for special and extraordinary expenses as follows:
Special or Extraordinary Expenses
7 (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation 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 employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time;
(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, 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 other educational programs that meet the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
Definition of “Extraordinary Expenses”
(1.1) For the purposes of paragraphs (1)(d) and (f), the term extraordinary expenses means
(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or
(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account
(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the court considers relevant.
However, the analysis does not end at whether an expense falls into the prescribed list in section 7(1), the expense must also be considered necessary in relation to the best interests of the child and reasonable considering the particular circumstances of each family, the means of the parties, and the pattern of spending before separation. The onus lies with the party seeking contribution to the expense incurred. Courts have a high level of discretion in determining whether an expense meets the necessary and reasonableness criteria. What may be considered necessary and reasonable for one family, for instance, private school tuition, may not be necessary and reasonable for a family with no history of sending their children to private school.
For expenses that fall into 7(1)(d)- extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs or 7(1)(f)- extraordinary expenses for extracurricular activities, an additional determination of whether the expense meets the definition of “extraordinary” within the meaning of section 7(1.1) must be completed. First, courts will determine if the expense exceeds the amount that the spouse requesting a contribution to the expense can reasonably cover. Courts will look to the income of the requesting spouse and their ability to pay for the expense. If the expense exceeds what they can reasonably cover, the expense is extraordinary within the meaning of s. 7(1.1)(a). If the expense does not exceed what the requesting spouse can reasonably cover, courts will then look to section 7(1.1)(b) to determine whether the expense is extraordinary having regard to the following factors:
the amount of the expense in relation to the income of the spouse claiming the expense;
the nature and number of educational programs and extracurricular activities; any special needs and talents of the children;
the overall cost of the programs and activities; and
any other factors that the court considers relevant.
Nevertheless, even extraordinary expenses must be necessary and reasonable under section 7(1) of the Guidelines to be considered valid section 7 expenses.
An expense that is not extraordinary is an ordinary expense and subsumed by the basic Table amount of child support. Ordinary expenses may include food, shelter, clothing, vacations, entertainment, pets, grooming, reasonably priced school fees and trips, children’s allowances, and trips and are presumed to be covered by the basic Table amount of support in section 3 of the Guidelines. The purpose of section 7 is to supplement the basic Table amount of child support, not reimburse parents for every additional expense incurred. Section 7 operates as a gatekeeper to ensure that parents are indemnified for expenses that are necessary, reasonable, and meet the criteria for extraordinary status where applicable.
Section 7(2) of the Guidelines provides that each party will share the expense in proportion to their respective incomes, after deducting any contribution from the child. Any subsidies, benefits, or income tax deductions related to the applicable expense are also deducted prior to calculating each parent's proportionate share. Courts may order reimbursement for section 7 expenses that have not yet been incurred and may estimate the amount of future section 7 expenses if required.
To illustrate the sharing of section 7 expenses, consider the following example:
Sara earns $50,000.00 per year as a lab technician. Doug, a doctor, earns $150,000.00 per year. They recently separated and negotiated a binding Separation Agreement. Sara and Doug have two children, Lily and Tim. Sara and Doug have agreed on the following section 7 expenses for Lily and Tim:
Lily’s afterschool care ($2,300.00 per year);
Lily’s gymnastics ($1,500.00 per year);
Tim’s math tutoring ($800.00 per year); and
Tim’s hockey ($2,000.00 per year).
If Sara and Doug did not have a Separation Agreement, courts would have to decide which of Lily and Tim's expenses qualify is valid section 7 expenses pursuant to the Guidelines. Lily's afterschool care is an enumerated expense under section 7(1)(a) of the CSG's. As long the afterschool care is necessary and reasonable, it qualifies as a section 7 expense. On the other hand, Lily's gymnastics and Tim's hockey are extracurricular expenses under section 7(1)(f) and must meet the definition of "extraordinary" under either section 7(1.1)(a) or section 7(1.1)(b) of before they can be assessed for necessity and reasonableness. Tim's math tutoring is also an "other educational program" under section 7(1)(d) that must meet the definition of extraordinary before it can be assessed for necessity and reasonableness. Assuming that all of Lily and Tim’s expenses are necessary and reasonable, and meet the definition of extraordinary where required, Sara and Doug will share the $6,600.00 in expenses in proportion to their respective incomes in accordance with the following:
Sara's proportionate share of Lily and Tim's section 7 expenses = .025/25% or $1,650.00
Doug will be responsible for 75% of the children’s section 7 expenses:
Doug's proportionate share of Lily and Tim's section 7 expenses= 0.75/75% or $4,950.00
While the above scenario exemplifies the benefits and predictability of a negotiated approach, determining what qualifies as a section 7 expense in court is not straightforward and requires a contextual analysis. For instance, if Doug in the scenario above was a nurse earning $65,000.00 instead of a doctor earning $150,000.00 per year, and the children did not historically attend gymnastics, hockey, and tutoring prior to separation, a court may find that one or more of these expenses are not necessary or reasonable and do not qualify as valid section 7 expenses.
Determining what qualifies as a valid section 7 expense is not always an easy undertaking. A careful analysis of the Federal Child Support Guidelines, applicable case law, and a fact-specific analysis is required. If you would like to discuss whether expenses that you have incurred may qualify as section 7 expenses or apportioning of such expenses, contact us today to arrange a consultation.