Test for Section 7 Expenses in BC Family Law

I have written on S.Z. v. D.Z., 2015 BCSC 2157 in two previous articles because of Justice Voith’s great mobility analysis. The purpose of this article is to explore his reasoning towards whether certain expenses qualify as special and extraordinary expenses under section 7 of the Child Support Guidelines.

The test essentially boils down to two issues, specifically,

  • Does the expense qualify as an extraordinary expense?
  • If so, what is the appropriate level of contribution from the person being asked to pay?

The first issue, whether an expense qualifies as extraordinary, has not surprisingly been the subject of a great deal of litigation. Justice Voith summarizes the general principles as follows:

  • The section 7 (1) list is exhaustive; the expense does not qualify if it is not listed (Clarke v. Clarke, 2014 BCSC 824, Kase v. Bazinet, 2011 ONCJ 718).
  • If the expense falls under section 7 (1) (d), educational programs, or (f), extracurricular activities, the claimant must prove the expense is “extraordinary”.
  • “Extraordinary expenses”, for the purpose of (1)(d) and (f), is defined in section (1.1) as:
  • (a) where the expense exceeds the claimant’s ability to pay; and
  • (b) where (a) does not apply, a proportionality analysis of factors accounting for ability to pay and the nature and circumstances of the activity.
  • If the expense is listed, it must be necessary and reasonable (Clarke v. Clarke, Yensen v. Yensen, 2003 BCSC 1372)
  • “necessary” means in relation to the child’s best interests;
  • “reasonable” means in relation to the combined financial means of the parents, and child where appropriate, and the family’s pre-separation spending patterns.
  • “reasonable” must be assessed in the context of a particular family (Richter v. Richter, 2010 BCSC 1578)
  • Spending extraordinary amounts of money on sports/activities just because a child is talented will not always be reasonable (Richter v. Richter).
  • In E.M. v. A.H.M., 2013 BCSC 827, the Court said: “It is not in the best interest of any child to see their parents’ finances become so compromised that they find themselves in financial difficulty and end up unable to give their children any future support. … It is healthy for children to learn about family limitations and family budgets.”
  • Generally, recreational sports and similar activities are considered “ordinary” and the issue is whether the child’s participation goes beyond that of the “average child” (Clarke v. Clarke, L.C. v. F.M.C., 2010 BCSC 1312).
  • If an expense qualifies, the Court must ascertain the level of contribution that is appropriate under the circumstances. This analysis should focus on the following non-exhaustive factors:
  • Existing contributions.
  • Ability to pay.
  • Nature of expense under the circumstances:
  • Does it address a medical/health situation?
  • Is it a one time or recurring expense?
  • Is it an emergency expense?
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BC Mobility Applications Part II: Views of the child

I have written on S.Z. v. D.Z., 2015 BCSC 2157 previously as it is an outstanding how-to guide for mobility applications. Now I would like to briefly address Justice Voith’s illuminating discussion of how we, as family lawyers, should understand the meaning of the views of the child in this context.

Justice Voith affirmed the principle from Stevenson v. Florant, [1925] 4 D.L.R. 530 at 544, that the child’s best interest must not be confused with the child’s views. Rather, as noted in Rupertus v. Rupertus, 2012 BCCA 426 at para 13, the child’s wishes simply provide context to better understand the all the evidence in determining best interests. The reliability of the child’s evidence must also be carefully considered: L.E.G. v. A.G., 2002 BCSC 1455, at para 48, calls for analysis of any specific factor that may affect reliability, including age, intelligence, maturity, the stage and hostility of litigation, and so on.

The views of the child requires a nuanced analysis. Here, the children preferred to live with mom if she moved to Kamloops. This, however, does not mean they wanted to move to Kamloops; it means simply that they want to live with mom.

Section 211 reports must also be carefully scrutinized. The report in this case was riddled with error and that affected its weight.

Again, S.Z. v. D.Z. provides an outstanding mobility analysis and BC family lawyers should review it when facing such an application.

BC Mobility Applications: children’s activities as the reason for moving

S.Z. v. D.Z., 2015 BCSC 2157, deals with a mobility application. Mom wanted to move the children away from dad so they could participate more fully in activities like hockey and cheerleading.

The reason for relocation is, of course, a factor for analysis in the Gordon mobility framework. Justice Voith says the following about sports on this point:

“I do not make light of the importance of sports or other such activities. Sports can teach children many important values. They can be a source of both confidence and of great enjoyment. However, absent extraordinary circumstances … sports and other recreational activities should complement a child’s life rather than dictate the circumstances of that life.”

This is an important judgment for BC family lawyers to bear in mind when facing a mobility application that is motivated by the children’s activities.

How to Handle a Foreign Spousal Support Order in BC Court

Buckley v. Morgan, 2015 BCSC 2025, is an excellent primer on the basic principles of BC spousal support claims and interjurisdictional support orders.

The Applicant applied in BC Supreme Court to set aside a Nova Scotia spousal support order and cancel arrears flowing from a long marriage. There was a history of family violence including two convictions for the Applicant and various other instances of abuse. The Applicant was age 59 and the Respondent 61. She worked early on in the marriage but towards the end she managed the household and became financially dependent on the Applicant. They entered a consent order for spousal support. The negotiation was marred by family violence. The Respondent essentially fled Nova Scotia to live with her child in BC, whom she was financially dependent upon. The Respondent could not achieve self-sufficiency due, in part, to the family violence.

Predictably, citing Chutter v. Chutter, Moge v. Moge, and W. v. W., the Court ordered ongoing spousal support on compensatory and non-compensatory bases, and reviewed the seminal principles of spousal support law.

The Court also reviewed the basic principles underlying the Interjurisdictional Support Orders Act, legislation allowing BC courts to handle child and spousal support orders from other jurisdictions. Part 4 deals with varying support orders and Division 2 applies where the applicant is outside BC.

Section 30 outlines the evidence the Court must consider (generally any relevant evidence) and empowers the Court to demand further information from the applicant. If it does not receive said information within 12 months, it may dismiss the application.

Section 32 outlines the Court’s powers, specifically: vary the order, make an interim order and adjourn the application, adjourn without an interim order, and refuse to vary. The Court may also order periodic or lump sum payments, encumber property with the order, deal with retroactive issues, and address certain specific expenses.

Section 33 allows the Court to make an order if the respondent does not respond to the application.

Counsel should, as always, carefully review the legislation, but Buckley is a good starting point for handling such claims.