Retroactive Child Support and Special or Extraordinary Expenses

Howe v. Tremblayis a very interesting decision on the topic of interim child support and special or extraordinary expenses. Such expenses are referred to as “section 7 expenses” as they are deal with in section 7 of the Child Support Guidelines. In this case, the parties were never married and, until several years into her life, the father had no idea that he had a daughter. Once the father was informed of this fact, he began to develop a relationship with his daughter. The mother never asked the father for child support for the daughter. At one time, she did request his assistance in paying the daughter’s private school tuition however, the father declined her request. This was partially because the mother had enrolled the daughter in one of the most expensive private schools in the city without consulting the father.

As a result of the father’s refusal to contribute to the daughter’s tuition, the mother brought an application seeking retroactive child support including the proportionate sharing of the daughter’s private school tuition expenses. Justice Horkins, based on the evidence before her, denied the mother’s claim for the sharing of section 7 expenses. The Child Support Guidelines state that, in order to be eligible for proportionate sharing among the parents, a section 7 expense must be “reasonable and necessary”. Justice Horkins did not feel that it was “reasonable and necessary” to send the daughter to the most expensive private school in the city. The Judge did, however, leave it open for the mother to present further evidence about this issue at trial, upon which her decision would be revisited.

This decision illustrates the fact that Courts are becoming more stringent in requiring evidence from the parties on both the “reasonableness” and the “necessity” requirements of the Guidelines. It also shows that, while private school may have some advantages over public school, this will not in and of itself meet the test for necessity. Further evidence, such as special needs of the child or the child’s inability to cope in public school, would go further to meet the test set out in the Guidelines.

In terms of determining the father’s income, the Court had to deal with the fact that the father received much of his salary in non-recurring payments. Although it was once the state of the law that non-recurring payments be excluded from income for the purposes of child support, this is no longer the case. The Courts now seem to be unanimous in their call for all payments received by a person in a year to be included in their income for child support purposes. As such, the father’s non-recurring payments were included in his income for the purposes of determining his child support obligations.

This case also provides some guidance on the issue of retroactive child support. As per the recent D.B.S. case from the Supreme Court of Canada, one of the factors to consider in determining entitlement to retroactive child support is when a claim for same was originally made. In 2005, the mother asked the father to contribute to their daughter’s private school tuition. Although she did not request child support in general, the Court deemed this specific request to suffice in terms of the first request for child support. This case is one of a growing number which make any kind of notice to the payor effective notice in terms of starting the support clock. The Court found that the father was blameworthy for failing to commence child support payments when he received this effective notice. Furthermore, an order for retroactive support was necessary based on the circumstances of the child and he would endure no hardship from such an award.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

This Post Has 2 Comments
  1. Child support is the right of the child and, as such, the father should have been paying child support all along. Furthermore, I believe that the court made an appropriate decision in making the support award retroactive to the date of the mother’s request for any contribution to the support of the child.

    Despite this, I agree with the Judge’s decision not to order to father to contribute to the private school expense. The father did not have an opportunity to participate in the decision-making process in terms of deciding if the child should attend private school and, if so, determining which school the child should enroll in.

    Generally speaking, it is important for parents to discuss their proposed section 7 expenses with one another before they are incurred in order to ensure that both parents are aware of and agree to same. Since these expenses pertain to activities that benefit the child, parents should make a concerted effort in this regard.

  2. In addition to being interesting in terms of the date to which retroactive support was ordered, this case also sheds light on how Judges make determinations in cases where section 7 expenses are at issue. Typically, one of the factors that the court looks to is the spending pattern that the parties established prior to separation. In this case, however, the father’s absence made this method impossible to utilize.

    The court then questions whether the expense is extraordinary. This involves an examination of whether the spouse requesting the expense could reasonably cover same based on their own income. It is interesting that there is little issue made of the parties’ respective incomes. Justice Horkins only mentioned that the mother’s income was sufficient to cover the expense. In addition, Justice Horkins found the expense to be unreasonable and unnecessary in this case.

    This case contains many lessons for litigants. First, the payor spouse should be consulted about section 7 expenses, especially those that are extraordinarily high. It is not cost-effective for parties to enroll their children in activities without consultation with their former spouse and then hire lawyers to resolve this issue. Parties should be proactive and discuss this issue, regardless of their respective incomes. Also, this case shows that a request for support should be made immediately to the payor, even if the recipient spouse anticipates that court proceedings are not going to commence until a later time. Timely requests for child support ensure the recipient spouse a better change of obtaining an order for retroactive support to the date of the request.

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