Planning to claim a section 7 expense? Remember to review the principles

December 15, 2023 • by David Frenkel & Samantha Rich

Originally published in the OFLM 2023-12 edition

Overview

On the surface, claiming Guideline section 7 expenses appears to be simple and straightforward.

What could be difficult about discerning whether an expense is food, shelter, or clothes? If it is not one of the three, then isn’t that a section 7 expense?

Not really.

Rather, a claim for a section 7 expense requires a true understanding of whether the expense for a particular child is necessary and reasonable.

And it may not come as a surprise for some that what a court determines is a s.7 expense for one party may not be allowed for another.

Therefore, the “why” matters and this is what this article is all about.

By way of an overview, we first reviewed the recent case of Campbell v. Campbell (2023 ONSC 5952). In Campbell, Justice Ellies discusses what share, if any, the father should pay of the child’s university application and moving costs. Spoiler alert: evidence was a key factor in dismissing the mother’s claim.

Then, we reviewed the published cases in Ontario from 2022 and 2023 (and some from 2021) and summarized the principles and case law that are regularly referred to when discussing special and extraordinary expenses in Ontario.

From our review, there were some decisions deserving honorary mention such as A.E. v. A.E. (2021 ONSC 8189), where Justice Chappel beautifully summarized many critical concepts and principles. Also, O’Neill v. Cutler (2023 ONSC 1143) was a recent decision where Justice Davies did a great job assessing ancillary university expenses with the care and attention that they deserve. And we can’t forget the often-quoted court of appeal decisions of Titova v. Titov (2012 ONCA 864) and Park v. Thompson, (2005 CarswellOnt 1632) that all family lawyers should be familiar with.

Finally, and just for fun, we collected all claimed expenses from the last couple years and divided them into two lists: where courts allowed them to be s.7 and where courts did not. We hope the list can serve as a useful reference guide for counsel dealing with s.7 claims in the future.

Campbell v. Campbell

Campbell v. Campbell is a good reminder when going to court to claim s.7 expenses, to do so with sufficient evidence. Otherwise, you may walk away with your tail between your legs and wishing you were more prepared.

In Campbell, the self-represented mother sought a contribution towards the child’s post-secondary education expenses under s.7 of the Federal Child Support Guidelines (the “Guidelines”). 

The mother sought to recover the father’s proportionate share of the costs of the child’s university application, as well as the costs of the child moving to North Bay and setting up a residence there. 

The father, also self-represented, submitted that he should not be required to pay for the moving costs because he bought the child a new computer, gave him the sum of $4,000 by way of e-transfers, and would be giving him another $1,000 in the near future (at para. 10).

Under s.7, the court has discretion to allow certain expenses taking into account the necessity of the expense, the best interests of the child as well as the family’s circumstances.

Justice Ellies reiterated that, “the exercise of apportioning a child’s post-secondary expenses requires that the court determine the reasonable costs of the child’s post-secondary education and how much the child can reasonably contribute to those costs” (at para. 27).

However, to do so, the court required a certain levellevel of information, which was not present in this case.

Although the mother deposed that the child had started working and “at minimum wage”, the court noted that “I am not sure how much that is, nor am I told how many hours he works a week or whether he works any overtime. I have no pay slips ...” (at para. 28)

The mother further claimed that the child was paying rent in the amount of $620 per month for his residence in North Bay and $250 per month for his trainer. The mother said that the child should be able to save about $1,000 per month for school.

Again, the court was left hanging with respect to the evidence. Justice Ellies noted that the mother did not indicate when the son started paying rent or the trainer costs and she did not give enough information to know if the estimate for school savings was reasonable or not or if this goal was met or exceeded in the past summer (at para. 29).

The mother continued to dig her metaphorical hole deeper.

The mother claimed that the child qualified for $10,200 of government financial assistance, $6,200 of which was a grant and $4,000 of which was a loan.

Justice Ellies again noted that there was no information about the child’s monthly unpaid-for expenses apart from his rent and thus he could not be sure that the government assistance would cover them all.

On the father’s side, the level of evidence was also unimpressive.

While the father demonstrated that he had given the child $4,000, the court noted that it had “no idea what that was used for” since some of it “may not have been used for post-secondary education expenses at all…” (at para. 31).

Ultimately, Justice Ellies held that he needed more information about the child’s income and expenses before he could apportion the child’s post-secondary expenses.

The mother’s claim was dismissed but an important lesson emerged to lawyers and litigants alike: don’t bring claims without adequate evidence.

Principles relating to claims for s.7 expenses

Campbell v. Campbell focused on the necessity of evidence when making s.7 claims. However, in addition to evidence, counsel need to reflect on the relevant principles and integrate them when grappling these issues.

The following are the s.7 principles that are used most often in courts in recent years.

The Titova Roadmap

1. Justice Chappel in A.E. v. A.E. (2021 ONSC 8189 at para. 374) referred to the often-quoted decision of Titova v. Titov (2012 ONCA 864) and developed the following road map:

1. Calculate each party's income for the purposes of determining contribution to section 7 expenses.

2. Determine whether the expense in question falls within one of the enumerated categories set out in section 7 of the Guidelines.

3. If the expense falls under section 7(1)(d) or (f), determine if the expense meets the definition of "extraordinary."

4. Determine whether the expense is necessary in relation to the child's best interests and is reasonable in relation to the means of the spouses and those of the child, and to the family's spending pattern prior to separation.

5. Determine the net amount of the expense after applying any applicable subsidies, benefits or income tax deductions and credits relating to the expense.

6. Consider what amount, if any, the child should reasonably contribute to the payment of the expense.

7. Finally, determine how much of the remaining amount each party should pay.

Right of the child

2. Child support and section 7 expenses are the right of the child (K. v. N., 2023 ONSC 5339 at para. 10).

Extraordinary expenses

3. In determining what is "extraordinary" the court must consider the amount of the expense in relation to the income of the party, including the amount of child support payable. The court may also consider the nature and number of activities, the special needs or talents of a child and any other similar and relevant factors. (K.R. v. M.R., 2022 ONSC 794 at para. 36)

4. Modest expenses arising from a child's participation in extracurricular activities are to be covered by basic child support (Craig v. Niro, 2022 ONSC 5178 at para. 45).

Reasonable and necessary

5. To determine reasonable and necessary, the following factors should be taken into consideration:
   1. The combined income of the parties;
   2. The fact that two households must be maintained;
   3. The extent of the expense in relation to their combined income;
   4. The debt of the parties;
   5. Any prospect for a decline or increase in the parties' means in the near future; and
   6. Whether the non-custodial parent was consulted about the expenses before they were incurred. (Hawkins v. Hawkins, 2019 ONSC 7149 at para. 116, reference to Piwek v. Jagiello, 2011 ABCA 303 and Correia v. Correia, 2002 MBQB 172)

6. In deciding whether an expense is necessary in relation to the child's best interests, the question is whether it is appropriate having regard for the particular needs and any special skills of the child, and the importance of supporting their overall physical, emotional and social wellbeing and development (A.E. v. A.E., 2021 ONSC 8189 at para. 380).

7. In the context of extracurricular activities, the necessity factor requires the court to consider the nature and extent of the benefits that the child derives from the activities, including "self-esteem, teamwork, friendships, family camaraderie and the ability to operate in a structured setting" (A.E. v. A.E., 2021 ONSC 8189 at para. 380, with reference to Richer v. Freeland, 2019 ONSC 6840 at para. 41).

Onus

8. The onus is on the party seeking contribution to demonstrate that the expense falls within one of the categories under s.7, and that they are reasonable and necessary, considering the parties’ financial circumstances. (Gaddon v. Da Silva, 2023 ONSC 5400 at para. 52)

Future expenses

9. The court may order reimbursement for s.7 expenses that have not yet been incurred. The language of s.7 allows for an estimate to be made in relation to future expenses and to permit an order requiring contribution to them. (A.E. v. A.E., 2021 ONSC 8189 at para. 376 with reference to Beneteau v. Young, 2009 CarswellOnt 5099 (S.C.J.))

Ordinary Expenses

10. S.7 expenses shall not include routine extra-curricular expenses but must be special and/or extraordinary in accordance with the definition set out in the Guidelines (Rushlow v. Tremblay-Garland, 2022 ONSC 2675 at para. 101).

11. Ordinary expenses are covered under the basic Table amounts of child support and include the following:
    1. food,
    2. shelter,
    3. clothing,
    4. grooming,
    5. entertainment,
    6. pets,
    7. vacations,
    8. many reasonably-priced school fees, supplies and trips,
    9. children's allowances, and
    10. other basic necessities, as well as many reasonably-priced recreational and extracurricular expenses (A.E. v. A.E., 2021 ONSC 8189 at para. 377)

Means

12. In assessing the reasonableness of an expense in relation to the means of the parties and the child, the court's analysis is not limited to considering their incomes. The term "means" has been given an expansive interpretation in the law, and encompasses all financial resources, capital assets, income from any sources, investments, pensions, and any other sources from which the spouse derives gains or benefits (A.E. v. A.E., 2021 ONSC 8189 at para. 382).

13. Where the expense is not within the means of the parties, the court may limit or deny recovery of that amount  (Kovalchuk v. Kovalchuk, 2023 ONCJ 355 at para. 59).

Past expenses

14. The fact that a party has strongly agreed to and encouraged the incurring of an expense in the past may support a finding that the expense is necessary, but it is not determinative as the court must ultimately determine the question of necessity as of the time when the order is made (A.E. v. A.E., 2021 ONSC 8189 at para. 380).

15. The fact that the parties incurred the expense prior to separation is not determinative and must be considered along with all other relevant considerations, including the following:
    1. Whether the expense caused financial strain to the parties during the relationship;
    2. The fact that each party may now have more limited means as a result of having to maintain separate households;
    3. Whether the expense has increased since the parties were together; and
    4. Whether the means of either party have decreased significantly since the separation. (A.E. v. A.E., 2021 ONSC 8189 at para. 384).

Retroactive claims

16. Retroactive s.7 orders may best be left for trial depending on the degree that the trier of fact can determine whether there was consultation, whether the expenses were reasonable and whether there is clear evidence of the parties’ incomes at the relevant times (Whittaker v. Whittaker, 2023 ONSC 2923 at para. 28).

17. The retroactive support analysis equally applies to claims for retroactive s.7 expenses (Lobban v. Lobban, 2022 ONCJ 163 at para. 38).  

18. The D.B.S. principles apply to claims for retroactive claims for contributions to s.7 expenses, or retroactive increases in such contributions (R. v. I., 2022 ONSC 3531 at para. 127)

Interim orders

19. It may be a waste of judicial resources to have past s.7 expenses determined on an interim basis, only to have them reconsidered by the trial judge a few months later where findings may be different (K. v. D., 2022 ONSC 1071 at para. 56)

Consent/Consultation/Notification

20. The Child Support Guidelines do not require that s.7 expenses only be incurred after the other parent consents, although whether or not the other parent consents to the expense or was aware of the expense may be a factor in considering whether the expenses are reasonable and necessary (Ford v. Cassell, 2023 ONSC 1553 at para. 51).

21. There are too many factors that may militate against consultation and notice for the court to make them absolute pre-requisites for obtaining an order for contribution to s.7 expenses (A.E. v. A.E., 2021 ONSC 8189 at para. 387). Examples of factors include:
    1. if the payor's comments and actions made it abundantly clear that consultation would have been a futile and meaningless endeavour;
    2. the party against whom reimbursement is sought clearly knew that the expenses were being incurred and did not raise any objection;
    3. due to intimidation or family violence by the payor.

22. Consultation is just one of many factors to be considered in the determination of the entitlement and is not a prerequisite for obtaining an order (S.C. v. C.C., 2022 ONSC 1763 at para. 421).

23. Even where there is an order or agreement requiring prior consultation or consent, the court retains an overriding discretion to allow s.7 claims notwithstanding lack of compliance with such terms (A.E. v. A.E., 2021 ONSC 8189 at para. 388). Examples of relevant factors include:
    1. the payor's attitude and conduct clearly demonstrate that efforts to consult and obtain consent would have been pointless,
    2. the payor could not be located,
    3. the recipient was unable to comply for valid reasons or in situations where requiring consultation and consent would be unadvisable due to concerns about intimidation or family violence.

24. An argument may be made for not consulting or notifying a spouse of s.7 expenses as they are incurred where it may be reasonable not to communicate with a former spouse. This could occur where parties separate as a result of violence, there are restraining orders in place, etc. However, despite a non-contact order, a spouse may still be able to provide receipts through a third party. (Kostrinsky v. Nasri, 2022 ONSC 2926 at para. 139)

25. Section 7 expenses do not require prior consultation for allowable expenses, but a failure or refusal by a claiming parent to discuss an expense with the other parent in advance bears on the court's exercise of its discretion in determining whether it is reasonable. However, where consultation would be meaningless due to chronic default of payor, or attitude of payor, prior consultation should not be required. (El Quazzani v. Chabini, 2022 ONSC 5773 at para. 66)

Post-secondary education

26. When children over the age of majority attend post-secondary educational institutions, the court must consider whether the child is able to contribute to their own post-secondary expenses. The level of contribution by the child is within the discretion of the trial judge. (O’Connor v. O’Conner, 2022 ONSC 3482 at para. 139 referring to the Ontario Court of Appeal decision of Lewi v. Lewi, [2006] O.J. No. 1847)

27. Not all expenses incurred by an adult child while attending post-secondary studies are considered s.7 expenses. Only those expenses necessary for the pursuit of education should be included. (Pyne v. Landaverde, 2022 ONSC 4518 at para. 74)

28. There is no requirement that post-secondary education expenses be extraordinary. Nonetheless, to qualify as a post-secondary education expense, the expense must be sufficiently connected to the program of study. (Craig v. Niro, 2022 ONSC 5178 at para. 24)

Discretion

29. Unlike section 3 of the Guidelines, which presumptively provides for the table amount of child support, an order for s.7 expenses involves the exercise of judicial discretion (Kovalchuk v. Kovalchuk, 2023 ONCJ 355 at para. 56).

30. An order for contribution to special and extraordinary expenses under s.7 of the Guidelines is discretionary as to both entitlement and amount (H. v. S., 2023 ONCJ 343 at para. 63).

31. The court has the discretion to apportion the s.7 expense in a different manner than pro-rata to the parties' incomes, depending on the circumstances of the case (Kovalchuk v. Kovalchuk, 2023 ONCJ 355 at para. 60; H. v. S., 2023 ONCJ 343 at para. 65).

1. For example, in Zhao v. Xiao, (2023 ONCA 453 at para. 17), the court of appeal upheld the trial judge’s determination that the parties pay the s.7 expenses in proportion to the combined household incomes rather than just the income of the parents alone.

Evidence

32. The party seeking contribution to the expense has the onus of adducing credible and reliable evidence respecting the necessity and reasonableness of the expense (A.E. v. A.E., 2021 ONSC 8189 at para. 379).
    1. Examples of evidence can be receipts and credit card/bank statements (R.L. v. M.F., 2023 ONSC 6063 at para. 30).

33. A Request to Admit can be an effective method to provide evidence with respect to claims for s.7 expenses (R.L. v. M.F., 2023 ONSC 6063 at para. 30).

34. Claims for s.7 expenses should be made with documentation or oral evidence and following the disclosure provisions in the Child Support Guidelines and the Family Law Rules. Otherwise, the claims can be dismissed. (W.A.C. v. C.V.F., 2022 ONSC 2539 at para. 35)

Examples of section 7 expenses in recent decisions

The following two lists (expenses allowed and not allowed) are a collection of examples where courts found that certain s.7 claims were allowed as s.7 expenses and certain ones which were not allowed.

Although informative as to how a court adjudicated a specific claim, the lists should be reviewed with the understanding that a court could have made a different decision if the contextual factors were different.

For example, if the income of the parties were higher, then a s.7 expense may have been considered to be an ordinary expense to be paid out of child support. Alternatively, if the income of the parties were lower, the expense may not have been allowed as it would not be an item that the parties would have been able to afford in the first place.

Other factors that can influence a decision on s.7 claims include the best interest of the child, the capability of the child with respect to a certain activity, the level of consultation prior to the expense being incurred, etc.

Nevertheless, the following lists are a helpful starting point to see what s.7 claims have and have not been allowed by courts since January 1, 2022 (along with a select number of cases in 2021 as well).

Section 7 expenses: allowed

The following is a list of claimed expenses which have been allowed as a s.7 expense:

• before and after-school care
  • (Downs v. Downs, 2022 ONSC 3382 at para. 16)
• car insurance
  • (M.C. v. R.K., 2022 ONSC 3281 at para. 97)
  • See also Ferlisi v. Boucher, (2021 ONCJ 48 at para. 97) where the expense was not allowed.
• caregivers providing nursing care for child
  • (Choudhury v. Awal, 2023 ONSC 4064 at para. 88)
• caregiver (part-time)
  • (O'Neill v. Cutler, 2023 ONSC 1143  at para. 3)
• cell phone and cell phone plan
  • (C.Z. v. J.Y., 2023 ONSC 80 at para. 6)
  • But see Ferlisi v. Boucher, 2021 ONCJ 48 at para. 98 and M.B. v. B., 2023 ONSC 125 at para. 91 where cell phone bills were not allowed.
• childcare (during summer and school PD days)
  • (Mestiri v. Mestiri, 2022 ONSC 1052 at para. 75)
• coaching (soccer)
  • (R.L. v. M.F., 2023 ONSC 6063 at para. 11)
• computer (and replacement every two years)
  • (Saroli v. Grette, 2022 ONSC 148 at para. 430)
  • (Mestiri v. Mestiri, 2022 ONSC 1052 at para. 64 – case note: if purchased for school requirements)
• contact lenses
  • (R. v. R., 2022 ONSC 965 at para. 24)
• cord blood bank/cord blood storage
  • (R.L. v. M.F., 2023 ONSC 6063 at para. 11)
  • (N.C. v. C.H., 2022 ONSC 7142 at para. 17)
    • The parties made a joint decision at the time of each child's birth to store their cord blood which is rich in stem cells.
• counselling
  • (Jones v. Iqbal, 2022 ONSC 6566 at para. 120)
• dance (competitive & non-competitive)
  • (Ojigho v. Burge, 2023 ONSC 2029 at para. 39)
  • Not allowed in Lima v. McCarthy (2022 ONSC 1383 at para. 226)
• dental
  • (El Quazzani v. Chabini, 2022 ONSC 5773 at para. 66)
  • The court also noted that the lack of consultation by the wife with the husband would not be a bar to this expense. The court held that meeting the child’s dental needs was a mutual obligation of both parents and that the child’s health should not be sacrificed due to the lack of communication between the parties.
• drum lessons
  • (AE v. AE, 2021 ONSC 8189 at para. 10)
• eye exam
  • (Kovalchuk v. Kovalchuk, 2023 ONCJ 355 at para. 70).
• eyeglasses
  • (K.R. v. M.R., 2022 ONSC 794 at para. 45)
  • The court also noted that eyeglasses should not need to be replaced annually unless the prescription changes or they break.
• food (while child away at university)
  • (O’Neill v. Cutler, 2023 ONSC 1143 at para. 12)
• gas money (as part of post-secondary expenses)
  • (C v. N., 2023 ONSC 3792 at para. 35)
• guitar lessons
  • (H. v. S., 2023 ONSC 4668 at para. 115)
• gym membership
  • (Boisvert v. McDonald, 2023 ONSC 4824 at para. 6)
• gymnastics
  • (H. v. S., 2023 ONCJ 343 at para. 74)
• health insurance premiums
  • (A. v. J., 2023 ONSC 1855 at para. 66)
    • The wife did not provide evidence as to the portion of the expense that was for her own insurance and the portion for the child. The court permitted one-half of the premium as s.7 expenses. But see Brun v. Fernandez, 2023 ONSC 4787 at para. 54 where $0 was permitted as a s.7 expense.
• hockey courses
  • (Campbell v. Campbell, 2022 ONSC 5816 at para. 24)
  • The courses the child chose all related to the career path he was following at the time: hockey. The court held that there was nothing unreasonable in these course choices on his part. The court also concluded that the expenses were necessary to maintain the child’s competitiveness in the sport.
• hockey lessons
  • (AE v. AE, 2021 ONSC 8189 at para. 10)
• horseback riding
  • (Wilson v. Sinclair, 2022 ONSC 2154 at para. 351)
• hot lunches
  • (Blaskavitch v. Smith, 2023 ONSC 2133 at para. 333)
  • (D’Amico v. D’Amico, 2022 ONSC 574 at para. 36)
• hotel (for hockey tournaments)
  • (J.L. v. D.L, 2022 ONSC 1003 at para. 24)
• incidentals (while child away at university)
  • (O’Neill v. Cutler, 2023 ONSC 1143 at para. 14 – clothing, computer repairs, household supplies, school supplies and personal items)
• karate (taekwondo)
  • (Ojigho v. Burge, 2023 ONSC 2029 at para. 39)
• Kumon
  • (El Quazzani v. Chabini, 2022 ONSC 5773 at para. 101)
  • The wife was advised by the school that the child was lagging behind in reading.  
• lab fees (university)
  • (R.L. v. M.F., 2023 ONSC 6063 at para. 21)
• laptop – one every 2 years and replacement, upgrade in case of lost, stolen, damage and data recovery
  • (CZ v. JY, 2023 ONSC 80 at para. 10; C v. N., 2023 ONSC 3792 at para. 35)
• laptop and storage capacity
  • (Boutin v. Lucitt, 2023 ONSC 2754 at para. 100)
• LCBO (as part of post-secondary expenses)
  • (C v. N., 2023 ONSC 3792 at para. 35)
• nanny/housekeeper
  • (M v. L., 2023 ONSC 4897 at para. 184)
• martial arts
  • (R. v. I., 2022 ONSC 3531 at para. 128)
  • But also see Lobban v. Lobban (2022 ONCJ 163 at para. 78) where the expense was not allowed.
• meal plans (university)
  • (R.L. v. M.F., 2023 ONSC 6063 at para. 21)
• Medic Alert monthly membership
  • (K.R. v. M.R., 2022 ONSC 794 at para. 45)
  • case note: given the severity of the child’s allergies.
• music lessons (up to $2,000 per year per child)
  • (CZ v. JY, 2023 ONSC 80 at para. 10)
• neuro assessment ($10,158)
  • (R. v. I., 2022 ONSC 3531 at para. 128)
• online study guides/courses (Study.com, Enotes.com, Licharts.com)
  • (R.L. v. M.F., 2023 ONSC 6063 at para. 11)
• orthodontics - braces ($6,880)
  • (Lima v. McCarthy, 2022 ONSC 1383 at para. 222)
  • The court rejected the husband’s submission that the expense for braces was unreasonable. The court was satisfied with the evidence that the child's dental work was necessary lest she be forced to have her jaw broken at a later date. The quantum of the expense was also reasonable.
• personal training ($300/mo.)
  • (Sne v. Sne, 2023 ONSC 566 at para. 43)
• Presto pass
  • (Duncan v. Donaldson, 2023 ONSC 5114 at para. 77)
• psychotherapist
  • (Brun v. Fernandez, 2023 ONSC 4787 at para. 58)
• psychologist’s assessment
  • (Gaddon v. Da Silva, 2023 ONSC 5400 at para. 55)
• religious Muslim school
  • (Al-Hadad v. Al-Harash, 2023 ONCJ 463 at para. 157)
• snowboarding lessons
  • (McMillan Barta v. Barta, 2023 ONSC 125 at para. 104)
  • (M.B. v. B., 2023 ONSC 125 at para. 94)
• soccer expenses
  • (Ferlisi v. Boucher, 2021 ONCJ 48 at para. 91)
  • But not allowed in Lobban v. Lobban (2022 ONCJ 163 at para. 78) as the wife was able to reasonably cover this expense, taking into account her income and the Guidelines table amount of support.
• therapy 
  • (Wilson v. Sinclair, 2022 ONSC 2154 at para. 366)
  • Therapy was to assist and support the children with the change in their residential care, with processing their experiences surrounding their parents' separation, and to generally help the children cope and to see themselves as independent people.
• therapy (speech)
  • (M. v. L., 2023 ONSC 4897 at para. 198)
• swimming lessons
  • (M.B. v. B., 2023 ONSC 125 at para. 93)
• technology fees (university)
  • (R.L. v. M.F., 2023 ONSC 6063 at para. 21)
• tutoring (Kumon and A-plus)
  • (Gaddon v. Da Silva, 2023 ONSC 5400 at paras. 8, 50 & 53)
• transportation costs (for school)
  • (Bakker v. Bakker, 2023 ONSC 3025 at para. 67)
  • (O’Neill v. Cutler, 2023 ONSC 1143 at para. 13 – gas, insurance, car repairs)
• travel costs (from school back home as part of post-secondary expenses)
  • Trecroce v. Chorney (2023 ONSC 96 at para. 94)
  • During the summer, the child returned home four times during the summer. In the court’s view this was excessive, and it deducted three of those trips from the court’s estimate as to reasonable expenses. The court viewed that it was reasonable that the child would return home four times a year.
• UBER (as part of post-secondary expenses)
  • (C v. N., 2023 ONSC 3792 at para. 35)
• uniforms (for school)
  • Bakker v. Bakker (2023 ONSC 3025 at para. 67)
• university applications
  • (Ferlisi v. Boucher, 2021 ONCJ 48 at para. 102)
• vacation (as part of post-secondary expenses)
  • (C v. N., 2023 ONSC 3792 at para. 35)
• vehicle purchase (for child)
  • (Boutin v. Lucitt, 2023 ONSC 2754 at para. 109)
• vitamins
  • (K.R. v. M.R., 2022 ONSC 794 at para. 45)
  • but only if prescribed by a physician.
• wisdom teeth
  • (Ferlisi v. Boucher, 2021 ONCJ 48 at para. 101)
• YMCA membership
  • (Boisvert v. McDonald, 2023 ONSC 4824 at para. 6)

Section 7 expenses: not allowed

The following is a list of claimed expenses which courts have not allowed or not determined to be s.7 expenses:

• alcohol (entertainment while child away at university)
  • (O’Neill v. Cutler, 2023 ONSC 1143 at para. 15)
• baby formula
  • (Pereira v. De Souza, 2022 ONCJ 607 at para. 107)
• bus passes ($500/child/year)
  • (M.B. v. B., 2023 ONSC 125 at para. 91)
  • The court noted that this expense was “not normally extraordinary” and could not be found to be extraordinary without significantly more supporting evidence.
• cannabis (entertainment while child away at university)
  • (O’Neill v. Cutler, 2023 ONSC 1143 at para. 15)
• car insurance
  • (Ferlisi v. Boucher, 2021 ONCJ 48 at para. 97)
• cell phone
  • (Ferlisi v. Boucher, 2021 ONCJ 48 at para. 98)
  • (M.B. v. B., 2023 ONSC 125 at para. 91)
  • (R. v. R., 2022 ONSC 965 at para. 18)
• cell phone bills/charges
  • (F. v. F., 2023 ONSC 2682 at para. 167)
  • (L. v. Y., 2022 ONSC 812 at para. 14)
  • (N.C. v. C.H., 2022 ONSC 7142 at para. 20)
    • The court took into account the broader context of the parents’ roles prior to the marriage and their relative incomes and found that the children's cellular plans were properly considered normal childcare expenses and were not captured by the term "special and extraordinary" in the parties’ Separation Agreement.
• chiropractor services
  • (N.C. v. C.H., 2022 ONSC 7142 at para. 16)
  • This treatment is not properly considered "medical expenses" unless and until they are prescribed or recommended by the child's treating physician.
• cream (over the counter)
  • (K.R. v. M.R., 2022 ONSC 794 at para. 51)
• dance lessons ($3,000-$4,000)
  • (Lima v. McCarthy, 2022 ONSC 1383 at para. 226)
  • The court held that however much the child may have benefitted from the lessons, they were not an entirely reasonable expense. $3,000 to $4,000 per year for dance was too expensive to be considered a reasonable expense given the husband’s income. The court was also mindful that the parties have four children and needed to ensure that the needs of all the children were met.
• diapers 
  • (Pereira v. De Souza, 2022 ONCJ 607 at para. 107)
• driver (to drive children to and from school)
  • (Hergert v. Hergert, 2022 ONSC 723 at para. 37)
  • The expense of a driver, at approximately $19,000 per year, was simply not reasonable given the modest income of each parent. If the wife were required to pay a proportionate share of the expense, this would constitute a substantial portion of her annual net income. Given that the children were with the husband for two weeks each month, the expense was disproportionate.
• driving school
  • (Ferlisi v. Boucher, 2021 ONCJ 48 at para. 96)
• food supplements
  • (R. v. R., 2022 ONSC 965 at para. 18)
• gifts (birthday and Christmas)
  • (K.R. v. M.R., 2022 ONSC 794 at para. 57)
  • This expense was not a proper s.7 expense but could be allowed if there was agreement to pay.
• gluten-free food
  • (R. v. R., 2022 ONSC 965 at para. 18)
• headphones (wireless noise cancelling)
  • (F. v. F., 2023 ONSC 2682 at paras. 164, 167)
• health insurance premiums
  • (Brun v. Fernandez, 2023 ONSC 4787 at para. 54)
  • The insurance was a “family plan” and the wife did not provide any breakdown of the premiums to separate out her portion from the children’s portion. But also see A. v. J. (2023 ONSC 1855 at para. 66) above where the court did permit half as a s.7 expense.
• hockey AAA ($12,000)
  • (Kuzyk v. Simeoni, 2022 ONSC 5736 at para. 22)
  • The court was not satisfied that the father had made out on the materials filed that AAA hockey was an extraordinary expense. “This is because he cannot get past the first aspect of the test in section 7(1)(f). The expenses for the past six years have not been ones he cannot reasonably cover.”
• hockey equipment
  • (Craig v. Niro, 2022 ONSC 5178 at para. 46)
  • The court reasoned: “I would not ordinarily consider a $320 hockey stick to be a modest expense. However, given Mr. Niro's income and the contributions of Ms. Craig and the daughter, I consider the remaining expense to be modest and within the amount of child support being set off against the amount that Mr. Niro would otherwise pay.”
• horse boarding fees
  • (M.B. v. B., 2023 ONSC 125 at para. 91)
  • There was no evidence to support why such expenses were reasonable and necessary.
• hotel and transportation (for child’s sporting tournaments)
  • (M.M.B.(V) v. C.M.V., 2022 ONSC 770  at para. 205)
  • These costs were incurred not only for the child but also for the parent that attended. The court can appreciate that the parent may wish to attend, but that fact on its own does not categorize the claimed expenses as reasonable and necessary.
  • But see J.L. v. D.L (2022 ONSC 1003 at para. 24) where the court allowed this expense.
• language lessons (Arabic)
  • (El Quazzani v. Chabini, 2022 ONSC 5773 at para. 95)
  • Although this expense was considered an educational expense by the court, the wife should have consulted with the husband as to which Arabic lessons were available to meet the child’s particular needs and what was affordable to the family.
• leadership camp ($200)
  • (Ferlisi v. Boucher, 2021 ONCJ 48 at para. 99)
• martial arts
  • (Lobban v. Lobban, 2022 ONCJ 163 at para. 78)
  • The wife was able to reasonably cover this expense, taking into account her income and the Guidelines table amount of support.
• medication (over the counter such as Gravol, Maalox and Tums)
  • (K.R. v. M.R., 2022 ONSC 794 at para. 45)
• naturopathic services
  • (N.C. v. C.H., 2022 ONSC 7142 at para. 16)
  • This treatment is not properly considered "medical expenses" unless and until they are prescribed or recommended by the child's treating physician.
• parent coaching
  • (C. v. D., 2023 ONSC 3984 at para. 65)
• pet care
  • (Pyne v. Landaverde, 2022 ONSC 4518 at para. 78)
  • Pet care was found not to be a necessary expense for the pursuit of education. The court did not have any evidence to explain why $1,000 a year was a reasonable or necessary expense for the child for pets.
• private school
  • (T.W. v. J.A., 2023 ONSC 3123 at para. 116)
    • The cost of the school ($8,600-$10,000 per year) was not a reasonable or necessary expense given the parent’s incomes of $62,000 and $17,000 per year, respectively.
  • (A.C. v. K.C., 2023 ONSC 6017 at para. 102)
  • (Kostrinsky v. Nasri, 2022 ONSC 2926 at para. 148)
    • The child’s private school expenses were not reasonable and necessary. Prior to separation, the child attended daycare until grade one, then started attending the local public school. It was only after separation that the child started attending private school.
• RESP contributions
  • (Brun v. Fernandez, 2023 ONSC 4787 at para. 54)
• school fees & supplies
  • (M.B. v. B., 2023 ONSC 125 at para. 91)
  • These expenses were “not normally extraordinary” and could not be found to be extraordinary without significantly more supporting evidence.
• skating
  • (El Quazzani v. Chabini, 2022 ONSC 5773 at para. 85)
  • The court found this not to be an extraordinary expense and that they should have been discussed. The court found these expenses not essential and not rising to the level of daycare and dental expenses. They were an “extra expense”.
• skiing (club membership dues and lessons)
  • (S.C. v. C.C., 2022 ONSC 1763 at para. 430)
  • The husband did not seek wife’s consent and the children only used the ski club during their time with the father. The husband also did not justify why the expenses were reasonable and necessary.
• summer camp
  • (R. v. R., 2022 ONSC 965 at para. 19)
  • The reasons for not allowing this expense included (1) the mother was not currently working outside of the home and the necessity of this expense was questionable, (2) the net cost would be minimal, and (3) the special expenses the father was contributing to were already quite significant.
• traffic ticket (while child away at university)
  • (O’Neill v. Cutler, 2023 ONSC 1143 at para. 16)
• ultimate frisbee
  • (J.L. v. D.L, 2022 ONSC 1003 at para. 20)
  • The wife registered the kids because they wanted “to try it out” for one season. The husband was not in agreement and voiced his objection at the time.
• uniforms (for school)
  • (St Cyr v. Deveau, 2022 ONSC 480 at para. 22)
  • But see Bakker v. Bakker (2023 ONSC 3025 at para. 67) where uniforms were allowed as a s.7 expense.
• volleyball
  • (Lobban v. Lobban, 2022 ONCJ 163 at para. 78)
  • The wife was able to reasonably cover this expense, taking into account her income and the Guidelines table amount of support.
• winter hat
  • (C. v. D., 2023 ONSC 3984 at para. 65)

Conclusion

As can be seen from the above summary of principles and the competing lists of allowable and not allowable s.7 expenses, courts have discretion to award s.7 expenses based on the child’s best interests and the specific family circumstances.

Therefore, parents should be mindful when incurring s.7 expenses prior to determining whether they are in fact eligible s.7 expenses.

It should be noted that children, mostly relating to post-secondary expenses, may also be expected to contribute to their expenses. It is therefore good practice for parents to consult one another regarding expenses incurred for the children as this will help to reduce unnecessary friction and avoidable trips to court.

Therefore, when dealing with issues relating to s.7 expenses, it will be best to proactively keep tabs on which expense is and will be claimed and collect the necessary evidence to support any claims or counter claims. Otherwise, trying to look back in time and address these issues may result in a situation that occurred in Jefic v. Jefic (Grujicic). In Jefic, Justice Madsen was not prepared to make any adjustments to amounts paid to special and extraordinary expense and noted as follows:

Given his strategic choice not to bring his variation application until he thought the duration of support outweighed any shortfall, I also do not think the burden falls on the court to prepare micro-calculations to ascertain minor adjustments. The court is being asked to unscramble the egg. The best I can do, on the evidence presented in this trial, is an omelet. (Jefic v. Jefic (Grujicic), 2022 ONSC 7240 at paras. 107 & 110)

So, to paraphrase Justice Madsen’s wise words of wisdom, when going to court with respect to s.7 expenses, don’t make an omelet.

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