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.

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