Cases - Section 7

Section 7 Expenses - Chambers v. Chambers

In Chambers v. Chambers, Carr J. clarifies how section 7 expenses are determined in Manitoba. In May 2006, when the amendments to the Federal Child Support Guidelines kick in, this case will have application under those guidelines as well.

The court must first look to the definition of “extraordinary” in s. 7(1.1) to make a finding that the expense qualifies. Then, if it does qualify as a section 7 expense, the court will determine if it is necessity and reasonable.

The section creates a two part test, to be addressed serially. The first question “(a)” to be answered is purely subjective, whether the expense is too great for the claimant to “reasonably cover”, taking into account the claimant’s income, including the amount of child support being received. At this stage the payor’s circumstances are irrelevant. If the expense passes the first test then it qualifies as “extraordinary”.

The expense may still be found to be extraordinary if the court is satisfied that it meets the criteria in “(b)”, the more objective, but still somewhat discretionary, five-part analysis which requires the court to consider:

(i) the relationship of the expense to the claimant’s income and child support,

(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.

The language of the section implies that the court must consider all 5 criteria, although there is no priority, mutual exclusion, or particular weight specified to any of them.

Even if the court finds that the claimant can afford the expense, it may still conclude that it is “extraordinary” considering the activities themselves in the context of the child’s particular needs and talents. The court’s discretion here is broad.

While parents may raise issues under the specific criteria enumerated in subparagraphs (i) to (iv), for example, that the child is over-programmed or that the cumulative costs of all activities is prohibitive, the court may consider other factors as relevant. Other factors might include that the paying parent was not consulted about the activity or school enrolment or that the activity interferes with that parent’s access or contact time with the child.

Once the expense has qualified as "extraordinary", the court will then look at the necessity of the expense in relation to the child’s best interests, the reasonableness of it having regard to both parents’ incomes and, where they had cohabited prior to the birth of the children, the family’s pattern of spending. The issue of reasonableness is often a lifestyle one. Expenses that the family could afford before separation might not be reasonable in the two households' budgets with the same financial resources.

The court must have evidence of necessity. It is not enough to rely on the precedent that another court allowed hockey, guitar lessons, summer camps, private tutoring or some other expense as extraordinary and claimable. On a case by case basis, the court must have the evidence of necessity and reasonableness.

Even if all of the requirements of the two sections are met, the court is not bound to find that an expense be paid/shared given the overriding discretion at the beginning of section 7 where the language is: "… the court may provide for an amount...