What qualifies as a section 7 expense for a child attending post-secondary?

 

What are section 7 expenses?

 

Child support is normally ordered in the form of a basic monthly amount (sometimes called the “table amount”) plus an amount for section 7 expenses (often called “special or extraordinary expenses”).

The table amount of child support is a fixed amount paid on a monthly basis by one parent to the other.  The table amount is supposed to go towards basic expenses such as housing, food, regular school fees and activities, etc.  If the table amount is being calculated under the default rule then the table amount is calculated based on income of the payor, number of children, and province of the payor.

Section 7 expenses are on top of the table amount.  As the name suggests, section 7 expenses are ordered pursuant to section 7 of the Federal Child Support Guidelines.  They are specific expenses that both parents contribute towards a percentage toward, such as child care, if that child care is necessary for a parent’s employment.  Often, parents contribute in proportion to their incomes.  For example, suppose two parents have annual incomes of $25,000 and $75,000, respectively.  One parent might contribute 25% and the other 75% toward the cost of child care.

As explained in previous articles, children 19 or older attending post-secondary education can be entitled to support, and may have some obligation to contribute to their own expenses.In this article, I want to talk about whether some of the child’s post-secondary expenses may qualify as section 7 expenses.  The short answer is that there is no clear rule for deciding whether a post-secondary expense qualifies as a section 7 expenses.  If this issue ends up in front of a judge, the judge will

1. look at all the facts,
2. look at what has been done in previous cases in front of the court, and
3. try to make a fair and reasonable decision for the specific family that has come to court.

Because there is no hard and fast rule about post-secondary expenses in the Federal Child Support Guidelines this is another issue where an experienced family lawyer, who has seen and read lots of cases involving post-secondary expenses, can be helpful.

 

How do we determine what post-secondary expenses are section 7 expenses?

 

Section 7 of the Federal Child Support Guidelines reads:

7 (1) In a child support order the court may, on either spouse’s request, provide for 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:

 ….

(e) expenses for post-secondary education

…

There are two important things to note about the wording of this section:  First, “expenses” is a very broad term.  It is not limited to “tuition and books”.  Second, before the court will make an order that parents share an expense, the court must consider the necessity and reasonableness of the expense.  Just because an expense was paid, that does not mean that both parents have an obligation to contribute to it.  For example, if the expense is extravagant or simply too much for a parent to afford, then the court may not order that the parents share it.

 

Is there a list of expenses that qualify as section 7 expenses?

No, there is no list of expenses that can tell you whether something is included in “expenses for post-secondary education”.  The necessity and reasonableness of an expense are going to depend on the particular circumstances of the child and parents.

Looking at case law as a whole, cases are all over the map as far as what expenses have qualified as section 7 expenses.  For example, cases have held that in addition to tuition and books, the price of a computer, car, travel expenses, cost of telephone and internet, clothing and even household supplies can be included.  This doesn’t mean that they are always section 7 expenses.  It is always a judgment call as to whether the expense is reasonable and necessary.  If there is a dispute between parents as to whether an expense qualifies as a section 7 expense, the judge will evaluate the expense based on how other cases have been decided and whether the judge thinks it is fair, reasonable and necessary in the specific case of the parents that come to court.

 

Further Reading

 

Johnson v. Johnson, 1998 CanLII 1114 (BC SC)

Kavanagh v. Kavanagh, 1999 CanLII 19824 (NL SC)

LaRue v. LaRue, 2008 ONCA 213

Lewi v. Lewi, 2006 CanLII 15446 (ON CA)

L.H.M.K. v. B.P.K., 2012 BCSC 435

Mickle v. Mickle, 2008 ONCA 36

Myers v. Myers, 2000 CanLII 12865 (NS SF)

S.L.C. v. R.M.C., 2007 BCSC 515

Schwabe v. Schwabe, 2010 ONSC 2547

Van Keken v. Van Keken, 2008 BCSC 308

W.P.N. v. B.J.N., 2005 BCCA 7