Special or Extraordinary Expenses: The Legal Primer extends over 2 pages. Page 2 covers distinct subject matters and also includes, at its conclusion, all the references for this family law, legal information article.

Special or extraordinary expenses occupy a small corner of the Federal Child Support Guidelines, circa 2012 - a single section of law numbered "7" - but few occupy more space in the universe of family litigation (see Legal Definition of Special or Extraordinary Expense).

Basic child support is set by reference to a table is supposed to suffice to meet the fair and proper financial contribution of a non-custodial parent towards the care of his or her child. The theory was always for the simplicity of an all-in amount. That was the advantage of a table.

However, in the committee meetings and lawyer conferences that dogged the drafting of the Guidelines, something more was added to reflect the reality of expenses unique to a particular child: hockey equipment and league fees for the young Wayne Gretzky, the $100 needed for the school basketball team, or the $140 for the clarinet a child has been asked to get by the school band.

special or extraodinary expense sample, kids playing basketballAs professor Julien Payne wrote:

"Judicial discretion to provide for the aforementioned child related expenses was deemed necessary because the child support amounts fixed by the provincial or territorial tables reflect average expenditures on children and the aforementioned expenses do not lend themselves to averages. §7, therefore, provides some degree of flexibility because not all family needs are the same."

Which brings us to the two most important features of special or extraordinary expenses but also the most obvious and the most over-looked: the expenses proposed must be special or extraordinary and they don't have to be special and extraordinary: just special or extraordinary!

Consider these words of Justice on the Alberta Court of Queen's Bench in Albo:

"Merely describing an expense as extraordinary will not automatically entitle a claimant to the amount sought. The Court must still consider whether the expense is reasonably necessary for the benefit of the child, whether the expense is reasonable relative to the parties’ joint income post-separation, and the Court must consider the family’s spending pattern prior to the separation."

The legal cases on special or extraordinary expenses could fill a small bookcase, which confirms that it is very difficult for the lay-litigant to assess whether or not a proposed expense is truly payable or not. Much money in legal fees have been and are still spent hassling over these expenses. Some cases can help establish basic principles.

Receipts

Any application for proposed special or extraordinary expenses should be backed up by receipts or some form of documentation failing which the application should properly be denied. The New Brunswick Court of Appeal in Young:

"The obligation was on the Appellant ... to provide details of these expenses."

Thomas - Necessary + Reasonable

According to the Guidelines (§7(1)), any proposed special or extraordinary expense has to be (1) necessary and (2) reasonable.

girl taking ski lessonsIn Thomas, Mother-Recipient sought to have Father-Payor pay for proposed orthodontic expenses. The Supreme Court of British Columbia:

"(O)rthodontic treatment for children ... comes within the category of allowable, special or extraordinary expenses.  However, it must be evident that the expense is necessary, in the child’s best interests, and reasonable.  Those requirements are prefatory.  There is no evidence whatever as to the medical necessity of the orthodontic treatment in this case.  The fact of the orthodontic treatment itself and its cost are not in dispute, but there is no supporting evidence as to the advisability or requirement.  In that circumstance, I am not prepared to accept that the simple fact of the expense being incurred automatically demonstrates its necessity or its reasonableness.

"The application of the plaintiff therefore for contribution by the defendant to orthodontic expenses incurred on behalf of the children is dismissed."

Ebrahim - "Means"

The Guidelines, when introducing special or extraordinary expenses, step out of the strict confines of income-based mathematics, so very helpful in setting basic child support: you earn $X, you pay $Y.

Section 7 introduces the concept of "means" against which the reasonableness of a proposed expense will be weighed. In Ebrahim, one judge (actually, he was a master but his decision was published and if often cited), opened Pandora's Box by suggesting that means is different from income:

"Means is defined ... as that by which a result is brought about (and) money resources ... wealth. Means may be greater than income in some cases."

The bad breath of this case permeated family law cases for a few years until Justice McEwan of the same Court, in Speakman v Willes, appears to have diminished its import:

"I do not think this mandates a broader view of income in every case where §7(1) comes to be considered. This is because I view means in that paragraph to relate primarily to the reasonableness of the expense.”

But the legacy remains one of legal confusion because if means is different from income, all sources of economic support behind each spouse becomes relevant, as does the liability one may have to pay spousal support (Takhar v Takhar). This means that the new partners of each parent needs to provide their income information too.1 As of January 2012, this issue remains unresolved as there is jurisprudence to the contrary.2

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