Navigating Section 7 Expenses with A Co-Parent
The Federal Child Support Guidelines distinguishes between two types of child support: section 3 and section 7 child support. Section 3 child support is what can be referred to as base child support (to cover basic needs of your child such as food, shelter and clothing). Section 7 expenses is in addition to section 3 child support and is for “special or extraordinary expenses”.
What is considered an extraordinary expense of the child will differ for each family, as the Court must take “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 mean’s of the spouses and those of the child and to the family’s spending pattern prior to separation” (section 7(1) of the Federal Child Support Guidelines).
The Guidelines go on to specifically define extraordinary expenses. The definition is (section 7(1).1) of the Guidelines) the following:
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.
Thus, the nature of section 7 expenses is highly discretionary to the judge/arbitrator hearing your case. For example, horseback riding lessons for one family may be considered a reasonable section 7 expenses if the family has considerable financial means, the child has been taking horseback riding lessons for years and is skilled in it. On the other hand, a child who has expressed an interest to start horseback riding but has never done so before, and the family is of limited financial means, this may not be an eligible section 7 expense.
In a recent BC case, WRM v DKM, 2020 BCSC 322, the Court distinguished between ordinary expenses and extraordinary expenses and found that the claims for extracurricular activities were not extraordinary and declined to rule that they were section 7 expenses. The Mother was claiming that activities she enrolled the children in, such as soccer, music lessons, basketball and dancing lessons were extraordinary expenses. The court explained at para 120-121:
Before a recreational or extracurricular expense will be considered a s. 7 expense, it must meet the threshold of being necessary, reasonable and affordable. It must be “extraordinary” in the sense that it is over and above what should be considered “ordinary”. The court must consider if the recipient of child support can reasonably cover the expense out of income, including table child support. If “yes”, it will usually not be considered an extraordinary expense. Nevertheless, it may still be considered an extraordinary expense depending on the amount of the expense in relation to the claimant’s income, the kind and number of programs/activities that the children are enrolled in, any special needs or special talents the children have, the overall costs of the programs/activities and other relevant/similar factors: LAM v SCM, 2020 BCSC 67.
121 The respondent has the onus of proving both the extraordinary nature of the expense and that it is reasonable and necessary and in the children’s best interests: McLaughlin v. McLaughlin (1998), 57 B.C.L.R. (3d) 186 (B.C. C.A.) at paras. 81-82; Bodine-Shah v. Shah, 2014 BCCA 191 (B.C. C.A.) at para. 66; MacInnis v. MacInnis, 2018 BCSC 1507 (B.C. S.C.) at para. 106. Here, the respondent has not shown that these expenses are anything more than ordinary expenses related to regular extracurricular activities. She has not shown that the children are at an exceedingly talented level that turns them from ordinary expenses into extraordinary expenses. On the admissible evidence before me, I find that the expenses related to Extra-Curricular Activities are no more than ordinary expenses that ought to be paid from child support. They do not meet the threshold of qualifying as extraordinary expenses: Clarke v. Clarke, 2014 BCSC 824 (B.C. S.C.) at paras. 50-54.
However, in another recent case, this one out of Ontario, Thwaite v Pertuz-Casado, 2019 ONCJ 153, the Court ruled that camp and soccer expenses were eligible section 7 expenses. The Court noted at para 29:
The parties both agree that soccer is very important for the child. He is playing on a Rep Team and also goes to soccer camps in the summer. These expenses exceed what the mother can reasonably cover on her own, taking into account her income and the table amount of support. The court finds that the Rep soccer costs are an eligible extraordinary extracurricular expense as defined by subsection 7 (1.1) of the guidelines.
The Court also considered that the parties had a history of sharing these expenses and paying for them pre-separation.
Thus, because this is a highly discretionary area of the law, it is best to seek legal advice to understand which of your child’s extracurricular or special expenses would likely be considered section 7 expenses under the Guidelines.