Recently, conflict over interpretation of the word "extraordinary" in the Federal Child Support Guidelines was resolved to incorporate what is referred to as a "subjective test. " May 1, 2006 saw the implementation of changes to the guidelines. One of these was the inclusion of a clause that defined "extraordinary expenses " with reference to education and extracurricular activities.
Prior to this resolution, there were two different approaches to determining the meaning of "extraordinary"; one was called an "objective test " and the other "subjective. " The former did not account for spousal income but took into consideration the type of activity and the type of expense. The subjective test, by contrast, accounted for spousal income and the circumstances of the parents and their children. This discrepancy created difficulties in keeping case law consistent. As a result, another clause in the guidelines has been added to address the interpretation of "extraordinary" and that definition takes the subjective approach into fuller consideration.
According to the new definition, if a spouse cannot cover the costs of the expenses claimed through his/her own income plus the support he/she receives, the expense is considered extraordinary. Of course, lower income families will be more likely to fall into this category. However, if the spouse receiving support has sufficient funds to cover the expense as a result of his/her income and support payments, the payor spouse may still have to make a contribution to the claim. This will depend on the court's interpretation of the relationship between the expense and the child's best interest. As well, the court must consider how reasonable the expense is with regard to the parents' incomes and spending habits with respect to the child while they were still living together.
Though these amendments don't mean that there won't still be inconsistencies in the rulings, the subjective test, developed by appeal courts in British Columbia, Alberta and Saskatchewan, finds more clarification through the revised definitions provided in the new guidelines.
The Department of Justice has attempted to further clarify this issue in a bulletin, which can be accessed by clicking here.
Reviewed March 2015