“I am not the bank!” - Children’s special and extraordinary expenses

Jack sometimes feels like he is considered a banker as the kids always need something new and Jill keeps on asking for money.   Now, it is braces and bikes.  Jack considers that the monthly child support he gives Jill should be enough for her to cover all those expenses.  Now that they are separated, he also has his own housing expenses to pay and there’s no way he is going to go into debt because Jill is unable to properly manage her money.   Jack strongly feels that it is time for Jill to learn how to live within her means.  After all, he is not a bank. 

Often, custodial parents are blamed by the ex for spending too much money on the children.  Under Canadian Federal and Provincial laws, children are entitled to financial support from both parents even if they are separated or divorced.  After all, it does take money to raise children and the expenses just get bigger as the kids get older. 

In Canada, child support is made of two components:  the basic table amount (meant to cover all basic needs) and the contribution to “special expenses” (meant to cover specifically defined types of expenses).  The basic amount is determined using the payor’s gross annual income in accordance with the Federal Child Support Guidelines.  Click on this link to access the federal child support calculator:  http://www.familylawinabox.com/en/resources_child_support.php 

Most disagreements in the area of child support arise with regards to special expenses, to which both parents must contribute in proportion to their respective income.  For example, if mom earns $25,000 per year and dad earns $75,000 per year, mom would have to contribute 25% towards the cost of special expenses and dad would have to contribute 75%.

As set out in section 7 of the Guidelines there are six specific categories of special expenses:

1. Child care (i.e. daycare)

2. The portion of medical and dental insurance premiums paid by either parents to cover the children (that portion that is paid by the employee)

3. Health-related expenses exceeding $100 a year (i.e. orthodontics, counselling, prescription drugs)

4. Extracurricular activities (i.e. horseback riding, hockey, music)

5. Primary or secondary education programs (for example, tutoring or the cost of a special software for a child with disability)

6. Post-secondary education costs

As usual, family law is not as simple as 1-2-3 and special rules apply to special expenses.   Even if an expense fits in one of the categories described above it does not mean that the parents must necessarily contribute to it. The expense has to be necessary for the child, and reasonable in light of the parent’s financial means.  Extracurricular activities or primary and secondary educational costs also need to be “extraordinary”.  Confused yet?  To help you understand your rights and obligations we have created a program entitled: « What is a special or extraordinary expense?”  which you may access by clicking here for more information.

While this is not specified in the Guidelines, the best practice for parents is to consult one another BEFORE an expense is incurred for the children, unless the expense is absolutely necessary (like child care or medical expenses).  Judges frown at parents who spend money on special expenses without requesting the other parent’s permission and then try to collect.  If you do that, a judge may deny you the reimbursement. 

How to choose a family lawyer?

It has now been three months, and conflict between Jack and Jill is reaching an alarming level.  Until recently, Jill believed that she would be able to resolve family issues with Jack amicably without the need for lawyers to get involved. This no longer looks like a possible outcome.  As a result, Jill is looking for a family lawyer.

How does one choose a family lawyer?  Hiring the right professional is certainly one of the most important decisions you will have to make in the context of your separation.  The choice of lawyer you make may have a significant impact on your financial future, the length that it will take to resolve things, and the amount of legal fees you will have to pay.  Most importantly, your children’s well-being and your ability to co-parent cooperatively with your ex in the future may forever be affected by choosing the wrong lawyer.

To choose the family lawyer who will be the perfect fit for you and your particular situation, take into consideration the following:

- Do you want a fight or do you want to remain civil and amicable?  If you want to do this as peacefully as possible, look for a lawyer who has a mediation or collaborative law training.  If you want a hired gun who will defend you fearlessly against an abusive and/or vindictive ex-partner, seek someone with a lot of court experience.

- Do you need an expert in family law or someone who has great negotiation skills?  While the expert may be better if your case presents some complex legal issues (often when the couple has accumulated significant wealth), if the main issue of contention is the care of your children you may be better served by someone with great negotiation skills rather than lots of academic knowledge;

- What is your budget? If you have limited means, you may want to look for a sole practitioner as opposed to hiring a lawyer who is part of a big law firm.  Sole practitioners or lawyers in smaller practice can usually offer more flexibility than large firms in terms of payment plans and hourly rates.

No matter what type of lawyer you need, in all cases you want to make sure that the lawyer who will help you with your case will have the following essential attributes:

- He/she practices exclusively in (or at least the larger part of his/her practice is dedicated to) the field of family law.  While your best friend, who happens to be a real estate lawyer, may be willing to help you (even for free), he/she does not have the necessary skills;

- He/she is available and responsive.  A two-day delay for a return call from your family lawyer is just not acceptable in the highly emotional field of family law which often presents emergencies;

- He/she is compatible with you.  You and your lawyer need to be on the same page when it comes to making decisions in your case.  As you will need to work closely together, you don’t want to work with someone who makes you feel unworthy or with whom you do not feel comfortable.

- He/she must treat you as an equal and essential part of the team.  You want a lawyer who listens to you, who seeks and considers your views, who keeps you informed of every event and development in your case, and who works collaboratively with you towards a final resolution.  You are not hiring a lawyer to make decisions for you.

- He/she must be a teacher, a coach and be candid and honest in the opinions he/she gives you. Way too many lawyers see their role as either your decision maker or your cheerleader.  You want neither.  You want someone who explains to you in clear language how the law works, who tells you when you are unreasonable or when your position is weak, and who leaves it to you to make your own decisions based on the information you have been provided.

In case of doubt, seek references from your friends, colleagues and family members who have been through a separation before. They most likely had to work with family lawyers and are a great resource when it comes to making that very important decision.