Does My Ex Have to Agree to The Cost of Enrolling Our Kid in an Extracurricular Activity?

Introduction

The Child Support Guidelines (the “Guidelines”) are a regulation under Ontario’s Family Law Act and Canada’s Divorce Act that establishes the proper methods for calculating and awarding child support in Ontario.ⁱ The Guidelines provide for two subtypes of child support: basic/table child support and s. 7 expenses.ⁱⁱ

Subsection 7(1) of the Guidelines provides:

Special or Extraordinary Expenses

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, 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 parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

child care expenses incurred as a result of the employment, illness, disability or education or training for employment of the parent or spouse who has the majority of parenting time;
that portion of the medical and dental insurance premiums attributable to the child;
health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;
extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
expenses for post-secondary education; and
extraordinary expenses for extracurricular activities.

For more information about the determination and characterization of s. 7 expenses, check out this blog on the DSF website: What Can be Considered a Section 7 Expense?

This blog post discusses whether parents must agree on a proposed s. 7 expense in order to claim reimbursement and/or share the cost.

Do Parents Have to Agree on Section 7 Expenses?

Subsection 7(2) of the Guidelines provides:

Sharing of Expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

In other words, the Guidelines requires parents to proportionately share the cost of their children’s special and extraordinary expenses. Generally, this is done by adding the parents’ respective annual incomes for a given year, and then attributing a percentage of this total to each parent. For example:

Mom earns $100,000 per year;
Dad earns $75,000 per year;
Their total income is $175,000 per year;
Mom’s income is approximately 57% of the total income, so she will pay for 57% of the s. 7 expenses; and
Dad’s income is approximately 43% of the total income, so he will pay for 43% of the s. 7 expenses.

Despite the calculation of sharing s. 7 expenses being straightforward, parents frequently disagree about the necessity, reasonableness, and/or extraordinary nature of a claimed s. 7 expense. For example: one parent wants the child(ren) to attend a prestigious private school, while the other parent argues that this is unreasonable and unnecessary because the child(ren) can go to public school. A further example: one parent wants the child(ren) to be in a variety of different extracurricular programs, while the other parent argues that this would be ‘overprogramming’.

This is normal! Not all parents share identical views about what is necessary or reasonable, or whether their child is actually in special circumstances. Fortunately, the Guidelines provide the courts with a framework to remedy this frequent debate, and the courts have expanded on the principles comprising this framework. The courts will not force the parents to come to an agreement when it comes to s. 7 expenses.

That being said, parents should still communicate about the expense before it is incurred, and consult with each other about the necessity, reasonableness, and, ultimately, the cost.

In July 2024, the Ontario Superior Court of Justice (“ONSC”) released its decision in Khan v. Khan, a significant portion of which goes over the legal principles to be considered by Ontario courts when determining whether to make an award for s. 7 expenses where the parents are in disagreement. The ONSC in Khan held that the court can “decline to order contribution to an expense even if it qualifies as a section 7 expense” based on the full factual picture in the case. One factor the court should look at is prior consultation with the other parent.ⁱⁱⁱ The ONSC stated that failing to consult with and provide advanced notice of an expense to the other parent “may be relevant where the payor made financial decisions without knowledge of the claims and would be significantly impacted financially from being unable to plan for the expenses.”^iv

It is clear that the courts are concerned with the unfair treatment of another parent by paying for a s. 7 expense and then seeking repayment without attempting to gain their approval beforehand.

Conclusion

Even though parents are not obligated to agree on s. 7 expenses for their children, they are highly encouraged to consult with each other about the s. 7 expense, and to give each other notice of the cost before incurring it and subsequently demanding repayment. Not doing so may prevent the parent seeking contributions toward these expenses from getting reimbursed by the other parent.

In sum, disagreements over children’s special and extraordinary expenses are normal and very common. Indeed, the Guidelines anticipate the existence of disagreements by providing the courts with a framework for awarding s. 7 expenses payable between the parents in the event one parent needs to obtain a court order to enforce the other parent’s contribution to these expenses. However, consulting with the other parent and gaining their consent to these expenses before paying for them is an important step, and failing to do so can have serious consequences.

If you are attending family court in Ontario, or you will be doing so in the future, most judges will recommend language on how s. 7 expenses are to be worked out and agreed upon between you and your child’s other parent. Family court judges will also provide guidance on what to do in the event of a disagreement.

If you have questions about section 7 expenses, please contact family lawyer Kenna Bromley at Devry Smith Frank LLP at 249 888-6641 or kenna.bromley@devrylaw.ca.