By Kayleigh Pink, Associate Research Lawyer,
Lam Family Law*

General Framework

Section 7 of the Child Support Guidelines (both Federal and Ontario) (“Guidelines”) governs “special or extraordinary expenses” that parents may be required to pay for their children. In determining whether a claimed expense is a legitimate s. 7 expense, the court takes 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 and the child, and the spending pattern of the parents prior to separation: Federal Child Support Guidelines, SOR/97-175, s. 7 & Ontario’s Child Support Guidelines, O Reg 391/97, s. 7.

The onus is on the parent seeking the special or extraordinary expense to prove that the claimed expense falls within one of the enumerated categories and that the expense is necessary and reasonable, having regard to the parental financial circumstances: T.C.M.W., v. R.K.W., 2020 ONSC 3554 (CanLII), at para 241, citing Park v. Thompson, 2005 CanLII 14132 (ON CA).

The Court of Appeal for Ontario (“ONCA”) set out the following considerations when determining whether to order contribution towards a claimed s. 7 expense.

  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, 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: 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:

  • i. The means of the parties;
  • ii. The means of the child; and
  • iii. The family’s spending pattern prior to the separation

A.E v. A.E., ibid, at para 381.

The factors the court considers in determining the reasonableness of an expense in relation to the means of the parties include: (1) The extent of the expense in relation to the parties’ combined income; (2) The fact that two households have to be maintained post-separation; (3) The debts and liabilities of the parties; (4) Any prospects for a decline or increase in the parties’ means in the near future; and (5) Whether there was consultation regarding the expenditure before it was incurred, so that the payor could plan for the expense and organize their financial affairs accordingly: A.E v. A.E., ibid, at para 383, citing various cases.

Prior consent is not a legal prerequisite to a s. 7 claim unless specifically required by agreement or court order. However, prior consultation is usually advisable, and is a factor that the court will consider in assessing a claim under s. 7: Soleimani v. Melendez, 2019 ONSC 36 (CanLII), at para 36. Additionally, where a party is seeking an award for retroactive s. 7 expenses, the revised framework set out in Michel and Colucci for retroactive Table child support also applies: A.E v. A.E., 2021 ONSC 8189 (CanLII), at para 200, citing various cases.

Are Competitive Sports a Legitimate Section 7 Expense?

The Meaning of “Extraordinary” Under Section 7
Competitive sports may fall under s. 7(1)(f) of the Guidelines: “extraordinary expenses for extracurricular activities.”: Federal Child Support Guidelines, SOR/97-175, s. 7(1).

Expenses are extraordinary where they are additional costs of raising a child that exceed what the recipient parent can reasonably cover, taking into account the Table amounts of child support: Federal Child Support Guidelines, ibid, s. 7(1.1) & Greene v. Greene, 2017 ONSC 3007 (CanLII), at paras 119-120, citing Ostapchuk, v. Ostapchuk, 2003 CanLII 57399 (ON CA).

What constitutes extraordinary “will vary according to the circumstances of each family”: Virc v. Blair, 2016 ONSC 49 (CanLII), at para 391; aff’d 2017 ONCA 394 (CanLII); leave to appeal refused 2017 CanLII 78699 (SCC).

Extracurricular activities do not have to be at the competitive level to qualify as a s. 7 expense: Meszen v. Meszen, 2021 ONSC 224 (CanLII), at para 118. However, there is often a question about whether a recreational activity meets the threshold of “extraordinary”.

For example, in Thomas-Bakker v. Bakker (2018), the payor father had a projected income of $37,100 and the mother had a projected income (imputed) of $67,082. The mother paid for the children to play recreational soccer. Justice Petersen found that these costs were not “extraordinary” expenses within the meaning of s. 7(1.1)(a) of the Guidelines. Rather, the mother could reasonably cover this expense with the father’s monthly child support payments: Thomas-Bakker v. Bakker, 2018 ONSC 5673 (CanLII), at paras 73, 99, & 141 [further discussion of this case below; court found that expenses for competitive sports were not necessary].

In contrast, in cases involving competitive sports, it is often not disputed that the costs are “extraordinary”. Rather, the issue is usually about whether the expenses are reasonable and necessary.

Competitive Sports Were Legitimate Section 7 Expenses
In Liberty v. Liberty (2014), competitive swimming expenses were valid s. 7 expenses. Justice Harper found that the child’s competitive swimming expenses were extraordinary, given the mother’s income ($80,000 versus $45,500 for the father), and necessary in the child’s best interest. The child (now aged 15) had long been involved in swimming and had been swimming competitively prior to separation. The child also expressed a wish to continue in competitive swimming: Liberty v. Liberty, 2014 ONSC 957 (CanLII), at paras 2, 4, & 23.

The expenses were also reasonable given that the parents’ combined incomes were in excess of $120,000 per annum. The father was to pay his 26% share of the $4,040 competitive swimming costs per annum: Liberty v. Liberty, ibid, at paras 25-26.

Similarly, in Lamb v. Watt (2017), Justice McDermot found that the costs associated with the children’s competitive sports were valid s. 7 expenses, to be shared in proportion to the parties’ incomes. The three children were in competitive soccer and one of the children also participated in competitive gymnastics. The court noted that the expenses were extraordinary, the children excelled in sports, competitive sports benefited the children, the father had not made a hardship claim, and there was “no issue” as to why the father could not contribute to these expenses. The father earned $38,916 per year and the mother earned $80,000 per year (imputed). The exact costs of the competitive sports were not provided: Lamb v Watt, 2017 ONSC 5838 (CanLII), at paras 42 & 48-51.

Another example is Gare v. El Nashar (2018), where the court found that the costs for the child’s competitive gymnastics was a valid s. 7 expense that the parties should share in proportion to their incomes. The child was “gifted” or had “special talents” in gymnastics, the costs were extraordinary and not covered by the Table amount of child support (exact costs unknown, but appeared to be under $3,000/year), the father knew of and encouraged the child’s participation in gymnastics, and the cost was reasonable having regard to the parties’ incomes (the mother earned approximately $81,000 and the father earned approximately $46,000): Gare v. El Nashar, 2018 ONSC 477 (CanLII), at paras 30, 61, & 67-69.

A Portion of the Costs for Competitive Sports Were Legitimate Section 7 Expenses
In contrast, the cost of competitive sports may be unreasonable given the parties’ financial circumstances. Where that is the case, “the court may limit or deny recovery” of the claimed amount: T.C.M.W. v. R.K.W., 2020 ONSC 3554 (CanLII), at para 243, citing various cases.

For example, in Meszen v. Meszen (2021), Justice Bloom found that the full cost of competitive dance was unreasonable given the parties’ means, but ordered that the father contribute towards a portion of the cost. The father earned an annual income of $62,191, and the mother earned an annual income of $60,758. The mother wanted to enrol the child in competitive dance and sought an order that the father contribute $375/month to this activity. Justice Bloom agreed with the father that $375/month was not reasonable, having regard to the parties’ incomes. The court instead ordered the father to pay $200/month towards the child’s competitive dance: Meszen v. Meszen, 2021 ONSC 224 (CanLII), at paras 108, 112, 120, & 123.

In Hall v. Riddock (2017), the mother brought a motion to change, seeking, amongst other things, that the father pay his proportionate share of the children’s special expenses for competitive hockey. Justice Murray found that an annual cost of $12,500 for competitive hockey was not reasonable in the circumstances. The mother earned $139,783 annually, but had a negative net worth of about $350,000. The father earned $94,957 and had a net worth of about $120,000. The court found that a reasonable amount for the father to contribute to the children’s s. 7 expenses for hockey, or any extracurricular or sports activity, was $3,000 annually (or $250 monthly). This represented 40% of a global amount of $7,500 annually, which the court found was a “reasonable amount to spend on the children’s sports and extracurricular activities given each party’s circumstances.”: Hall v. Riddock, 2017 ONCJ 352 (CanLII), at paras 6, 8, 43, 48-49, & 52.

Competitive Sports Were Not Legitimate Section 7 Expenses
The cost of competitive sports may not be necessary or reasonable, especially where the child enjoyed the sport or activity at a lower-cost prior to separation. For example, in Ginese v. Fadel (2024), the children were heavily involved in extracurricular activities while the parties were still together. The father continued the same activities the children were already engaged in while the parties were still together for the years of 2019 to 2021. The four children’s extracurricular activities for these years ranged from $5,729 to $8,035, or approximately $1,400 to $2,000 per child per year. Justice Audet found that the mother was required to pay her proportionate share of the children’s extracurricular activities for those years. However, in 2022, the father, without notifying or consulting with the mother, enrolled one of the children in a more expensive dance program, increasing from $2,693 in 2021, to $12,254 in 2022, and $14,444 in 2023. The father also enrolled two of the other children in a soccer program for which the costs doubled from previous years, again without notifying or consulting the mother. The court found that these increased costs were not necessary or reasonable: Ginese v. Fadel, 2024 ONSC 3011 (CanLII), at paras 56 & 58-60.

Similarly, in Thomas-Bakker v. Bakker (2018), discussed above, the court found that where the parties had not registered the children in competitive sports prior to separation and had limited means, the cost of competitive sports were not necessary to ensure that the children’s best interests were not compromised – “the children could play (less costly) recreational sports instead.”: Thomas-Bakker v. Bakker, 2018 ONSC 5673 (CanLII), at para 100.

T.C.M.W. v. R.K.W. (2020) is a unique case where the court dismissed both parties’ claims for an order that the other contribute to s. 7 expenses because, amongst other reasons, the costs were not reasonable. After separation, the father continued to pay for the three children’s competitive soccer and the mother paid for the youngest child’s competitive Irish dance. The court took issue with the fact that neither party gave the other notice in a timely way that they were seeking contribution from the other. Given the parties’ unusual siloing during the marriage, notice was required and the expectation of contribution from the other could not be inferred. Justice McSweeney also had concerns about the lack of proof supporting both parties’ claims. Finally, the court found that many of the expenses were “simply not reasonable in light of the post-separation reduced means of the parties”. Each party paid for expensive activities that they could not afford. While the court recognized that it may be disruptive to remove children from activities they have devoted time and energy to, it would have been reasonable given the parties’ reduced economic circumstances to consider lower-cost sports for the children. Some reduction in expenditures was required: T.C.M.W. v. R.K.W., 2020 ONSC 3554 (CanLII), at paras 232-234, 255-256, 261-262, 264-265, 268, 270, & 275 [underlining added].

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