By Maria Golarz, Senior Associate Research Lawyer, Lam Family Law*

Section 7 Expenses: Generally

Section 7 of the Child Support Guidelines (both Federal and Ontario) (“Guidelines”) governs “special or extraordinary expenses” that parents or spouses may be required to cover “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 prior to separation or in respect of the child during cohabitation: Federal Child Support Guidelines, SOR/97-175, s. 7; Ontario’s Child Support Guidelines, O Reg 391/97, s. 7 [underlining added].

The Court of Appeal for Ontario (“ONCA”) has set out the following considerations for s. 7 expenses:

  • 1. Does the expense fall within the listed special or extraordinary expenses?

    2. Is the expense necessary in relation to the children’s best interests?

    3. Is the expense reasonable in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation?

    4. Are there any subsidies, benefits or income tax deductions or credits relating to the expense to be taken into account?: Hawkins v. Hawkins, 2019 ONSC 7149 (CanLII), at para 72 [emphasis added], citing Titova v. Titov, 2012 ONCA 864 (CanLII), at para 23.

In deciding whether an expense is necessary in relation to the child’s best interests, the question is whether it is appropriate having regard to the child’s particular needs and any special skills, and the importance of supporting their overall physical, emotional, and social wellbeing and development. Continuity for the child in terms of their education and activities is also relevant to the necessity analysis, particularly when they are struggling as a result of their parents’ separation: A.E v. A.E., 2021 ONSC 8189 (CanLII), at para 380, citing various cases.

The reasonableness assessment respecting s. 7 expenses is three-fold; the court must consider the reasonableness of the expense in relation to:

  • 1. The means of the parties;

    2. The means of the child; and

    3. The family’s spending pattern prior to the separation: A.E v. A.E., ibid, at para 381.

Are Cell Phones a Possible S. 7 Expense?

Most case law approaches cell phones as a possible s. 7 expense and follows the s. 7 analysis set out above. While earlier case law was more cautious, more recent cases recognize that use of cell phones by teenagers is often a reasonable and necessary expense for the purposes of school and communication with parents, as long as the parents have the means to cover the expense.

For example, in Studzinski v. Studzinski, 2020 ONSC 2540 (CanLII), Justice Fowler Byrne considered cell phones as follows (at paras 127-128):

  • [127] With respect to the child’s cell phone, such an expense is not specifically referenced in s. 7 of the Guidelines. In this day and age, when most teens carry a cell phone and teachers allow for these tools in their classrooms, a cell phone may be considered a necessary expense for primary or secondary school or something necessary for the children’s extracurricular activities (ability to contact their parents for scheduling of activities, rides, etc.) Accordingly, I find that cell phone expenses for teenagers in high school should be included as a potential “extraordinary expense” related to school and extracurricular activities, as long as it meets the definition of same [extraordinary].

    [128] “Extraordinary” is defined in s. 7(1.1) of the Guidelines. In determining if an expense is truly “extraordinary”, the court must look at the expense in relation to the resident parent’s income and the amounts they will be receiving for support, the nature of the expense, and the overall costs (along with other extraordinary expenses). [underlining added]

In that case, Justice Fowler Byrne found that the child’s cell phone ($56.50 per month) was extraordinary and should be paid as a s. 7 expense, instead of being subsumed within the table amount of $654 per month: para 129.

Similarly, in Zawahreh v. Alkhoury, 2021 ONSC 7956 (CanLII), Justice Himel included cell phone expenses as s. 7, where these were a “reasonable expense for teenage boys”: para 87. In that case, the parties’ incomes were $80,000 and $40,000: para 6.

A cell phone may be even more important where it is used as the primary way a child communicates with a parent. For example, in Regnier v. Regnier, 2014 ONSC 5480 (CanLII), Justice Pelletier found that cell phones were reasonable (up to a cost of $3,915 per year), given the children’s ages (18, 16, & 15), the parties’ respective incomes ($100,000 and $172,000 per year), and the fact that the cell phones promoted communication between the father and children: para 33. See also Liberty v. Liberty, 2014 ONSC 957 (CanLII), at para 33 [ages 15 & 14; combined income of $120,000 per year; cell phones facilitated father-child contact].

In the recent decision of Little v. Little, 2024 ONSC 3771 (CanLII), Justice Stothart noted that most teenagers would likely say a cell phone is “essential”. However, the decision to purchase cell phones for children is necessarily based on the family’s financial circumstances. “Families of modest means may not be able to afford cell phones for some or all of their children”: para 25.

In that case, the parties were of modest means. The mother, a nurse, currently earned $74,645 per year. The father was unable to work due to an injury, and currently had no income. The children were aged approximately 18, 14, & 12 and lived primarily with the father: paras 5-9. While the parties were together, the children did not have cell phones. It was the payor mother who paid for the children’s cell phones, so they could connect with her and to provide them with better internet for gaming and communication with friends when at their fathers’ house. She sought a credit towards child support for the cell phone bills. Justice Stothart found that, in the circumstances of this family, the cell phones were to be considered as s. 7 expenses (and not part of base Table support), and ordered the cost to be split 75 [mother] / 25 [father]. The court noted that the mother had agreed to take on the “bulk” of this expense so that the children could enjoy the use of cell phones which are, “for many families of modest means, a luxury”: paras 20-28.

[Also of note about Little v. Little (2024): It was a Binding Judicial Dispute Resolution hearing, and Justice Stothart gives a good overview of this process at para 2.]

However, there are still many cases where the court takes a stricter approach, and refuses to accept cell phone costs as a s. 7 expense.

For example, in Evans v Evans, 2023 ONSC 3919 (CanLII), Justice Madsen noted that as a “general rule”, cell phones for a child do not fall within s. 7 “unless specifically required for an educational program or a medical purpose”: at para 79. In that case, the parties’ respective incomes were $106,005 plus rental income and $106,000 plus rental income: para 5.

Similarly, in Ferlisi v. Boucher, 2021 ONCJ 48 (CanLII), Justice Sherr held that a “youth’s cellphone costs do not fall within an enumerated category under subsection 7 (1)” of the Guidelines. Although, the analysis may be different if the youth resides out of town for their post-secondary education: para 98, citing Park v. Thompson, 2005 CanLII 14132 (ON CA).

In Rodriguez v. Robertson, 2022 ONSC 965 (CanLII), Justice Audet held that cell phones were not proper s. 7 expenses because – like gluten-free food and food supplements – such expenses were covered by basic child support: para 18. In that case, the parties’ respective incomes were $87,975 and $41,285: paras 12-13.

For other recent Ontario cases where cell phones were denied as s. 7 expenses, see:

  • Lopatowski v. Lopatowski, 2024 ONSC 3833 (CanLII), at para 248 [parties had agreement requiring joint approval before items could be treated as s. 7 expenses; parties’ incomes were $100,000 and $55,562: para 219 & Appendix A];
  • Moore v Lemmon, 2023 ONSC 6735 (CanLII), at para 46 [temporary without prejudice order; parties’ combined incomes were $672,436: para 45]; &
  • McMillan Barta v. Barta, 2023 ONSC 125 (CanLII), at para 91 [where mother claimed cell phone expense but gave no explanation why such an expense met the criteria under s. 7; parties’ incomes were $91,673 and $66,514: para 104(3)(d)].

*with thanks to Vanessa Lam for her suggestions and edits.