• This is Page 2 of 2 of Special or Extraordinary Expenses: The Legal Primer, which began at page 1. All References are at the end of this 2nd page of the article. 

Zarins - Proportionality

The language of the Guidelines is that, at §7(2):

"The guiding principle ... is that the expense is shared by the spouses in proportion to their respective incomes."

Because of the soft words guiding principles, the Courts have taken it upon themselves to deviate from the principle of proportionality on a judicial discretion basis. Then-Chief Justice Williams in Zarins:

"I have a discretion under §7(2)."

Orthodontics

If any professional has benefited from "Section 7", it has been the orthodontists.

There is a small dump-truck full of family law cases from coast to coast which practically all (there are very rare exceptions) declare orthodontic expenses to be both special or extraordinary, but also only to be shared proportionately as against that part of such expenses not covered by the dental plan, if any, of one or both parents.

child with braces• Live in British Columbia? See Earles v Earles (2006) or McCrea v McCrea (1999).

• Alberta? See Schroder v Schroder.

• Ontario: Check out the unequivocal words of Justice Allan of the Ontario Superior Court of Justice in the 2011 decision in Roshankar v. Yazdanpanah.

• New Brunswick? You should be reading McAllister v Chisti.

• Newfoundland? Ludrigan v Ludrigan.

The exception to the rule? See Knill v Knill (British Columbia) where the cost of braces was held not to be a special expense.

The Nanny/Day Care

Child care expenses are a frequent-flyer in special or extraordinary expense litigation. In a nutshell, the costs of child care, even a nanny, is an eligible expense if it frees the recipient parent to work.3

Conversely, that cost is not eligible if the recipient parent does not use the freed-up time to work.4

Private School

The extra expense of private school has produced a plethora of cases from which some basic principles can be proposed.

day care spoof adFor the most part, private school expenses are eligible extraordinary expenses.

Private school expenses are denied in appropriate circumstances such as an absence of guaranteed ability for the parents to pay for it.6

The End of the Beginning

We end this expose on the law in Canada as regards child support and special or extraordinary expenses with the wise words of Madam Justice Prowse who tried to impose some common sense into the escalating shopping list of eligible expenses, even though most of them were not, are not, and will never be special or extraordinary.

In McLaughlin v McLaughlin, this judge of the British Columbia Court of Appeal wrote these words (1998):

"In my view, none of these expenses, individually, can be viewed as extraordinary expenses. The activities (soccer, hockey, swimming and softball registration and equipment costs) are common extracurricular activities for children of these ages and there are not, as there are in some cases, additional fees for such things as camps, trips, or expensive equipment...

"n my view, Mr. McLaughlin's proportionate share of these expenses ($70 per month) must be treated as being included within the amount of maintenance he is paying under the basic table."

In other words, had these words of wisdom stuck (they didn't), the expense for which payment was being sought from the payor, would have been more restricted; it would really have to have be special or extraordinary, not just extracurricular.

But this approach did worry the Federal government who added §7(1.1) in 2005, coming in force in 2006.

The compromise? Pandora's Box remains open but the test is mostly subjective, dependent on the facts of the child at the time as well as, to a much lesser extent, those of the prospective payor.

• This is end of the article Special or Extraordinary Expenses: The Legal Primer, page 2 of 2, which commenced with Page 1. References follow. 

 

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