NOTE: We will be operating virtually due to the current COVID-19 situation

Child support payments can comprise a basic monthly amount as well as “section 7” expenses. The basic monthly amount is determined by the Child Support Guidelines, while section 7 expenses are separate from regular support and may be either special or extraordinary child care expenses. These amounts may be shared between the parents in proportion to their incomes. In some cases, parents are unable to agree whether particular section 7 costs are reasonable or should be shared.

Dividing Section 7 Expenses Between Parents 

Section 7 of the Child Support Guidelines outlines the framework governing special and extraordinary expenses. Eligible expenses must fall within a prescribed list but include expenses related to:

  • Extracurricular activities
  • Post-secondary education
  • Extraordinary school costs

The procedure for awarding section 7 expenses was outlined by the court in Titova v. Titov. The court calculates each party’s income for child support purposes and determines if the claimed expenses fall within one of the enumerated categories. The claimed expenses must also be necessary “in relation to the child’s best interests” and also reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.” The judge will also determine whether any expenses are “extraordinary” and if the child should contribute part of the cost. Subsidies, benefits, income tax deductions, and credits are also taken into account. 

The guiding principle is that any expense is shared by the parents in proportion to their incomes. However, courts can depart from this and exercise their discretion to apportion the expense in a different manner, rather than pro-rating according to income. The onus will be on the parent seeking special or extraordinary expenses to prove that the expenses fall within the recognized categories under section 7 and that the expenses are necessary and reasonable based on the parents’ financial circumstances. In Park v. Thompson, the trial judge concluded that certain expenses claimed were reasonable, noting that they were consistent with the activities the family participated in prior to separation. That finding was overturned on appeal, as it was not a sufficient basis to find the expenses were reasonable. 

When apportioning section 7 expenses, courts can consider the resources available to the parties and whether they have the means to pay. In Hawkins v. Hawkins, the court stated it can consider the parties’ assets, debts, income distribution, third party resources, support obligations and receipt of support, as well as other relevant factors. Where the expense is not within the means of the parties, the court may limit or deny the recovery of any amount from the other party.

Courts Encourage Parties to Consult One Another Before Incurring Expenses

Consultation between parents before incurring additional expenses under section 7 is more than a best practice. Courts weigh any consultation (or its absence) when determining the entitlement of a party to claim the expense.

While the legislation itself does not require prior consultation for recovery of valid section 7 expenses, numerous decisions have advanced the objective of consultation prior to incurring expenses. In Douglas v. Mitchell, Justice Price accepted that it was desirable for “a custodial parent to consult the non-custodial parent and engage him or her in negotiations on the issue of special expenses before incurring them and applying to the court for an order compelling the other parent to contribute.” However, he declined to make it a prerequisite in every case. 

The court in Douglas accepted that the failure of a claiming parent to discuss an expense with the other parent will affect whether the court finds the expense was reasonable. But this too can be subject to the individual dynamics between the parents in managing their respective obligations. Where a payor has persistently defaulted in making payment or has refused to cooperate, consultation is rendered meaningless and the obligation can be waived. 

In Mistry v. Mistry, the court concluded that if an order requires consultation before a section 7 expense is incurred, and consent was not sought, then “the paying party loses their right to seek reimbursement”. Where consultation is required, parents are entitled to avoid the accumulation of expenses that they did not have any opportunity to plan for. 

Think About Verifying Expenses to Minimize Disputes

In Yeo v. Hutcheson, the parties signed a separation agreement that contemplated their three children may incur special or extraordinary expenses. The parties agreed to consult one another before incurring an expense on a child’s behalf, with the parties paying any agreed-upon expenses equally.

The applicant requested an order requiring the respondent to provide his share of certain expenses. While the respondent did not dispute the expenses were in the children’s best interests and necessary, he maintained he should not have to pay because the expenses had not been proven. He also argued that he had not been consulted prior to the expenses being incurred. 

Justice Minnema acknowledged that the “gold standard” for proof of section 7 expenses will be actual receipts and that the claiming party has an obligation to provide supporting documentation. The court found the applicant had not thoroughly provided evidence for her claims. 

In Yeo, the court noted an expense may be estimated where the actual amount is difficult to ascertain. However, there must be evidence to support the estimate. The judge found that while some claims were more tenuous than others, there was some evidence to support the amounts in the applicant’s statements through her affidavit.

The court also disagreed with the respondent’s claim that he did not have to pay half of the expenses unless he agreed to them in advance. His refusal to pay support voluntarily made consultation redundant and the applicant could not be faulted for concluding that consultation would be meaningless in the circumstances.

Contact Boulby Weinberg LLP for Advice on Child Support and Extraordinary Expenses

Navigating section 7 expenses can be challenging and involves thorough consideration of each family’s needs and circumstances. Boulby Weinberg LLP focuses on solving clients’ problems effectively and efficiently and creates strategic legal solutions tailored to each family’s situation. To speak with our knowledgeable family lawyers and to discuss how we can help with your child support dispute or other family law matter, please contact us by phone at 647-494-0113 ext. 102 or complete our online questionnaire.

Address

661 Yonge St Suite 500
Toronto, ON M4Y 1Z9

T: 647-494-0113
F: 647-347-2156