Day Care age, school fees & costs of suit

[peaches4]

My ex's lawyer has forwarded to me a draft divorce order setting out section 7 expenses she is hoping to receive. she mentions child care expenses but my son is 14 and doesn't go to day care anymore. Is there an age limit for child care expenses? I don't want to be paying for a "baby sitter" if she goes out with her boyfriend in the evenings/weekends.

Also, she wants me to pay for school fees. He not at a private school, so the fees wouldn't be that much. Aren't school fees covered under regular child support? it's not a section 7 expense is it?

She has also mentioned that she wants me to pay for costs of suit. Given that we've now been separated for 12 years and I really don't care if we get divorced or not (she's the one who's initiated the divorce now) and that her lawyer is also her brother so, clearly he's doing this pro bono for her, what exactly constitutes "costs of suit"? I am willing to split the court costs with her which will be minimal if we don't actually go to court, but I am not willing to pay for her lawyer's fees, which, if I did agree, would be at full cost for me. I can't afford my own lawyer, let alone someone else's.

[Mess]

Just say no to costs. Filing for divorce would be about $500 if you did it yourself, and you can, it's not complicated if it is a joint application especially. Normally you would only pay her costs if you went to court, you lost, you had refused a reasonable offer beforehand. There is absolutely no reason why you should pay anything more than your share of filing the divorce papers.

Your son may still be going to summer camp which is considered equivalent to daycare, and trust me, you don't want a 14 year old boy running around all summer with nothing to do. But generally you are correct, he doesn't need child care. Perhaps there is an after school program but those are usually pretty low cost at that age. When you get the draft agreement prepared by them, use a red pencil and mark in that you will pay a share proportionate to your income for any registered daycare or registered summer camp that is acknowleged by CRA as a legitimate childcare expense. (You will have to do at least that much.) You're right, small school fees like for class trips etc would normally come out of child support.

If you can't get all that fit into a divorce order, have it drawn up sepatately as a separation agreement. You can download a template of the internet or get the book from Staples or Chapters and make your necessary changes. Get her and her lawyer to sign it and you get a lawyer to sign off on it and get it notarized. Don't just sign off on a divorce order that has a lot of vague clauses that have you paying for "everything."

[blinkandimgone]

School fees don't have to be just for private school. For each of my kids the costs have typically been anywhere between 2 - 300$ per kid at the beginning of the school year. This year with my son going into more specialized courses the cost will be a heck of a lot more with a course fee of $200 - $350 per course for each of his electives - which will also double in three years when my daughter starts the same grade. IMO, that does fall into section 7 outside of regular child support, would it not?

[Mess]

Here is the infamous Section 7:

7. (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, 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 spouses and those of the child and to the family’s spending pattern prior to the separation:
(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.

Definition of “extraordinary expenses”

(1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means
(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or
(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account
(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the court considers relevant.

Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

Universal child care benefit

(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit.
SOR/2000-337, s. 1; SOR/2000-390, s. 1(F); SOR/2005-400, s. 1; SOR/2007-59, s. 2.

Subsection (1.1) (bolded) is the critical clause. An expense must be beyond what is reasonable for someone to pay at their income level, including all benefits and tax credits. You would have a hard time arguing that $200-300 per year is unreasonable even at a minimum wage level. The section is not intended for amounts like that, it is intended for amounts in the thousands. Of course there can be interpretations, and if you have 4 kids and the payor has a low income and is therefore paying low support you could make an argument, but the section 7 isn't normally interpreted that way.

[Nadia]

Do you have to have a special provision for Section 7 expenses in your final court order or is it something that can be followed up afterwards?

[peaches4]

Thank you, Mess, that's exactly what I'm looking for. I have no problem paying for anything that will make my son's life better, but I also want it to be fair.

To answer your question, Nadia - no, I have to have a special provision for Section 7 expenses in my final divorce order. That's why I want to get it right the first time.

Many thanks for your advice.