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EXTRAORDINARY EXPENSES

This article is further to the recent article written by Jim Glass from our office on the topic of the upcoming amendments to the Federal Child Support Guidelines. More accurately, this article is a continuation of the discussion on 'extraordinary expenses'.

The determination of what qualifies as an extraordinary expense under the Guidelines is one of the most litigated aspects of child support law. Currently there is no definition for extraordinary expenses in the Guidelines. Section 7(d) of the Guidelines refers to extraordinary school expenses, and section 7(f) refers to extraordinary extracurricular expenses, but it ends there. The amendments to the Guidelines, effective May 1, 2006, will include the addition of the following definition of extraordinary expenses:

1. 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 [for child support]'or,
2. where paragraph a. is not applicable, expenses that the court considers are extraordinary taking into account:
   1. the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive [for child support],
   2. the nature and number of the education programs and extracurricular activities,
   3. the nature and number of the education programs and extracurricular activities,
   4. any special needs and talents of the child or children,
   5. the overall cost of the program and activities, and
   6. any other similar factor that the court considers relevant.

It is hoped that this definition will help clarify what is, and is not, an extraordinary expense, and therefore decrease litigation in this area.

The wording of the definition of extraordinary expenses mirrors the wording adopted several years ago by the Manitoba legislature after the ruling in the Manitoba Court of Appeal case Andries v. Andries (1998). The Court in Andries specifically pointed out that child support payable by a payor under the Guidelines allows for all ordinary expenses of child rearing. The Court went on to indicate that an extraordinary expense is an expense that is unusual in nature or cost.   It is an exceptional expense that represents a marked departure from an ordinary expense. As indicated above, the Guidelines specifically refer to extraordinary school expenses, and extraordinary extracurricular activities, so it follows that ordinary, or usual expenses for school and extracurricular activities are allowed for in the base support paid by a payor. This is something that is often overlooked by individuals requesting contributions from the other parent for their child's school or extracurricular expenses, and is often overlooked by many lawyers as well.

Something else that is frequently overlooked is that whether or not a school or extracurricular expense is an extraordinary expense, is only one part of the test to determine whether the expense should be in addition to regular child support. The following must also be determined:

• Is the expense necessary in relation to the child's best interest? and
• Is the expense reasonable taking into account the means of the parents and the child, as well as the family's spending pattern prior to the separation?

If it is determined that an extracurricular expense is extraordinary, but it's not reasonable given the criteria above, then the expense should not be allowed even if it's in the child's best interest. An expense must be necessary, reasonable and extraordinary, thereby satisfying all three parts of the test.

It is hoped that the addition of a definition for extraordinary expenses will help clarify what is and is not an extraordinary expense, but it must be remembered that this is only one step in the overall determination of whether an expense is an add-on to child support, or whether it is subsumed by it.

By Danielle Elder
March 22, 2006