Special Expenses – Extracurricular Activities – Best Approaches for a Hassel Free Experience

I once heard a senior family law judge describe special and extraordinary expenses as a Gordian knot. Like Alexander the Great, who simply cut the impossible knot in half with his sword, the best approach to the seemingly unsolvable extraordinary expenses problem can be a direct and simple approach.

Extracurricular activities are a frequent source of disputes between parents with school-aged children, as activities such as hockey, music lessons, or dance, are costly. Extracurricular activities are an enumerated special and extraordinary expense under Section 7 of the Child Support Guidelines (“the Guidelines”). However, there is a lot of discretion when it comes to how much, if anything, each parent should contribute to their child’s extracurricular activities. “Discretion” can equal additional legal costs.

What is a Special and Extraordinary expense, anyway?

“Table” child support is the monthly dollar value that a support payor pays to the support recipient for the support of their child/children. In general, table child support is predictable and user-friendly for parents. In most circumstances, the only information many parents require to determine their table child support obligation under the Guidelines is current income and the number of children that child support is payable for. The same is not true for special and extraordinary expenses.

Special and Extraordinary expenses are payable in addition to table child support, and broadly fall into 5 categories: (1) childcare expenses; (2) medical and dental expenses including insurance premiums attributable to the child; (3) extraordinary expenses for primary or secondary school education or other educational programs; (4) expenses for post-secondary education; and (5) extracurricular activities. I will be focusing on extracurricular activities, for this blog post.

Special and extraordinary expenses are calculated pro rata with each parent’s income. As a simple example, if Parent A earns $60,000 per year and Parent B earns $40,000 per year, Parent A will be responsible for 60%, and Parent B will be responsible for 40% of the special and extraordinary expenses. The portion owed by the parents, is the out-of-pocket portion owed after any deduction for a subsidy, benefit or income tax deduction or credit relating to the expense. To complicate matters further, Section 7 also accounts for a reasonable contribution from the child, if any.

What makes an extracurricular activity “Extraordinary”?

It might be tempting to look at the list of enumerated items under Section 7 of the Guidelines and assume that since extracurricular activities are enumerated, they are automatically a special and extraordinary expense, but that is not the case. To qualify as a special expense or extraordinary expenses, the expense must be found to be “extraordinary” as defined by the Guidelines.

Section 7 defines “extraordinary” as expenses that exceed an amount the requesting parent can reasonably cover, after accounting for the requesting parent’s income, and the amount of table child support the requesting parent can be expected to receive.  The phrase “reasonably cover” is open for interpretation.

“Extraordinary” is alternatively defined by examining the nature and number of extracurricular activities and other expenses. Consider circumstances where a child is enrolled in several activities; circumstances of families with multiple children engaged in multiple activities; or circumstances where the cost of extracurricular activities is competing with other extraordinary expenses like tuition.  

“Extraordinary” can also be defined by any special needs and talents of the child. A child who shows exceptional promise in a particular activity might be considered “extraordinary” for thispurpose, even if the activity places a strain on family resources.

Necessity and Reasonableness

Even if an expense is determined to be an “extraordinary” as defined by Section 7 of the Guidelines, to qualify as a special expense it still must be necessary and reasonable in relation to the child’s best interests and the in relation to the means of the parents.

To determine whether an activity is in a child’s best interests, we must examine their level of interest in the activity, as well as, any benefits to the child: for example, swimming lessons could be deemed to be in the child’s best interests if the family spends time at the lake.

The best interest of the child is weighed against the reasonableness of the expense. In a family with a middle-class income, it may be unreasonable for one parent to enroll in the child in an endless number of activities and then expect the other parent to pay for it. However, since some parents are “savers” and some parents are “spenders”, regardless of income or wealth, Section 7 also looks to the family’s pattern of spending prior to separation, to assess whether an expense is “reasonable” on the facts.

Recommendations for a Hassel Free Experience

Oftentimes, parents negotiating a settlement, will incorporate terms related to extracurricular activities and payment. Unfortunately, open-ended or vague provisions cause havoc in the lives of parents. They can create an all-too-common scenario of one parent receiving endless invoices for activities they did not consent to/cannot afford, and the other parent feeling they are footing the bill for most of the child’s extras.

To avoid the dreaded Gordian knot, skilled family law lawyers will recommend that their clients build direct, specific, and simple provisions around extracurricular activities into their settlement, which set out clear parameters and expectations. There are several approaches that I recommend taking, and different approaches work for different families. For some families, a combination of these approaches, serves them well:

1. Set a Budget: If parents have a lot of difficulties communicating, I recommend they set an annual “budget” for extracurricular activities. For example, the payor parent may agree to contribute $500 annually on top of their regular table child support to budget for their child’s extracurricular activities. If the recipient parent exceeds the $500 budget, it will be the recipient parent’s responsibility to make up the difference with regular table support.
2. Limit the Number of Activities: This is a variation of setting a budget, but the “budget” is the number of activities the child may enroll in within a particular timeframe, as opposed to a cost ceiling. A common settlement parents come to, is that the child may engage in one or two activities, per season.
3. Consent in Advance: Agreed-upon activities should be spelled out clearly in the settlement. With respect to any new activities the child may enroll in after the settlement is signed, it is prudent to have a provision that the requesting parent must obtain consent in writing. If some future activities are anticipated and agreed upon by both parties, a good family law lawyer will recommend that they be noted too.
4. Lower Cost Alternatives: It is important for parents to investigate lower cost or subsidized options, rather than simply enrolling the child in the first/most costly option that becomes available. In cases where the parents have good communication, a good family law lawyer will recommend a provision that the family will investigate all low cost or subsidized options for a particular activity, prior to enrolling the child, can assist in managing everyone’s expectations.
5. Seek a Contribution from the Child(ren): Teenagers and adult children who are old enough and mature enough to have a part-time job can be reasonably expected to contribute to some of the costs of their activities. In this case, your family law lawyer may suggest that your and your spouse build a provision into your settlement that the child will contribute to a set percentage of the cost of an extracurricular activity.

It is important to obtain independent legal advice for a superior divorce lawyer or family law lawyer prior to signing any family law settlement, to avoid the Gordian knot of extracurricular activities and other special and extraordinary expenses, amongst other common pitfalls in family law settlements signed without legal advice. Contact Bair Family Law today at (705) 720-1090 for a  family law consultation.