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?