Vancouver Child Support Section 7 Special and Extraordinary Expenses Duty To Consult

BC Child Support Guidelines Section 7 Special and Extraordinary Expenses Require A Duty To Consult First

Vancouver child support Section 7 Special and Extraordinary Expense disputes often require the involvement of the courts to determine whether the expense is necessary and reasonable. Parents need to be aware of the need to discuss the expense with the other parent before incurring a special and extraordinary expense. In short, it is dangerous to not discuss a special and extraordinary child support expense, incur it and then demand payment after the fact. The first key point to note is that not every expense is a special and extraordinary expense as the basic child support guideline amount contains a component for certain basic expenses related to activities. The second key point is to give notice and a request for payment before you incur the expense if you want to obtain a contribution on a disputed special and extraordinary expense. Call us today toll free at 1 877 602 9900.

In this weeks decision of JT v. CT  Section 7 Special or Extraordinary expenses were sought for a Young Drivers of Canada course taken by a 20 year old girl in January through March of 2009 and the cost of reconstructive surgery for her in late 2010 following her 100 pound weight loss that left her with unsightly excess skin. The driver’s course expense was disallowed but a contribution to the cosmetic surgery was permitted.

[38]         Section 7 (1.1) of the Federal Child Support Guidelines provides a definition of “extraordinary expenses” as follows:

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonable cover, taking into account that the spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.[Emphasis added.]

[39]         I find firstly that the expense incurred by the claimant for the Young Driver’s Training Course could easily be covered by the claimant considering: her income at the time, together with the child support she was receiving from the respondent. As a result, I do not find the cost of the Young Driver’s Training Course to be an “extraordinary expense”.
[40]         If I am wrong in my finding in the previous paragraph, I turn to the decision of Mr. Justice N.H. Smith in Lee v. Chung,2011 BCSC 404 [Lee] in which the learned Justice found the activity to be reasonable and ordered the respondent to pay a share of the cost which had not been incurred at the time of the application. In fact, earlier in that decision, Justice N.H. Smith found that if expenses were incurred without consultation, the cost cannot later be recovered after the expenditure is complete. Specifically, at paragraphs 35 and 36, he stated:

35        Of greater significance, in my view, is the fact that Ms. Lee incurred all of these expenses unilaterally without consulting Mr. Chung. In Barker v. Barker, 2005 BCCA 177, the Court of Appeal said:

26 […] When parents cannot agree on their children’s reasonable and necessary special and extraordinary expenses the Guidelines require them to share, each presents evidence to the court. On the basis of that evidence the judge make a determination of the amount they are to share.

36        If the parents are to present evidence as to the reasonableness and necessity of expenses, they should have equal as possible opportunities to obtain evidence at or near the time the expenses are incurred. It is neither fair nor reasonable for one party to incur the expenses and put the other in the position of having to marshal evidence long after the fact.

[41]         I completely agree with the reasoning of Mr. Justice N.H. Smith in Lee regarding a claim by a parent for retroactive expenses and his reasoning is applicable to the facts of the case at bar. Even if the expenditure had met the definition of “extraordinary expense” under section 7 (1.1) (a), there was no opportunity for the respondent to participate in the decision to make the expenditure. Moreover, this finding is supported by the Joint Guardianship provision of the Agreement, which required the claimant to consult with the respondent prior to incurring any significant expenditure such as that which is claimed.

The Claim for the Cost of S.T.’s Reconstructive Surgery
[47]         Although the possibility of reconstructive surgery had been discussed, reviewed and researched by S.T. and her mother for over a year, the respondent had no notice of the likelihood of such surgery, or for the cost of the same, until early November of 2010. During the first week of that month, the respondent received a lengthy letter from S.T. which included a plea for financial assistance to cover a portion of the cost of the surgery. S.T. indicated how important the results of the surgery would be towards her self-image and that she would eventually attempt to pay back any contribution.

[50]         Correspondence continued between S.T. and the respondent with S.T. expressing her disappointment and the respondent expressing frustration at being approached by the claimant and S.T. only when money was required for various purposes. Needless to say, the respondent did not contribute a portion of the cost of the surgery which was paid for by the claimant who borrowed funds to cover the cost.
[51]         Section 7(1) of the Guidelines provides, in part:

7.(1)     In a child support order the court may, on either spouse’s request, provide an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

a)     health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
[52]         I have no hesitation in finding that the elective