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FactsEdit

The couple had two children, both of whom had attended private schools since junior kindergarten. At the time of the separation, the father's base salary increased from $185,000 to $225,000. He received no bonus during that year but expected to receive a bonus of $119,900 in the month. The mother earned $64,000 that year. The mother brought an application for an interim order for a contribution from the father for private school expenses.

IssueEdit

  1. Are the private school expenses "extraordinary expenses" under s. 7(1)(d)?

DecisionEdit

Application allowed.

ReasonsEdit

Jollimore states that before ordering a contribution to a children's private school costs under s. 7(1)(d), the expense must be shown to be necessary as it relates to the children's best interests. The court must also be satisfied that the expense is reasonable in relation to the means of the spouses and the needs of the children, as well as to the pattern of spending that existed for the family prior to separation. If the court determines that the expense is necessary and reasonable pursuant to s. 7(1), it must then determine whether it is extraordinary pursuant to s. 7(1.1). She proceeds with the analysis in four stages.

  1. Necessity: is it necessary as it relates to the children's best interests for them to attend private school?
    • Despite the use of word "necessary", the caselaw has not imported a high standard.
    • Special needs of child are not required in order to get to contribution to private school. It can be a necessity regarding a child's best interest to attend a private school if the child would not thrive in a public school environment. As well, academic or social needs might make it a necessity in the child’s best interest to attend private school.
    • A key issue here is stability; a lot of upheaval in the children's lives since the separation, had difficulty adjusting to the separation, thus it is better for the kids to remain in the same school.
  2. Reasonableness: is private school reasonable in relation to the means of the spouses and with regard to the needs of the children?
    • This includes more than just income. Jollimore considered the Statement of Income which the wife provided; the family had over a million dollars in their investment account, the husband lived in a $740,000 home with a $460,000 mortgage, the family had a boat, etc.
    • Prior spending patterns: the kids had only ever been in private school, three separate ones over the course of their educations. This is not to say that this is singularly determinative, but in the facts of this case, it was reasonable.
  3. Extraordinariness: were the private school expenses "extraordinary" under s. 7(1.1)(a)?
    • Two part test:
      1. s. 7(1.1)(a): is this an expense that the custodial parent can reasonably cover given their income and their child support?
        • If so, the expense is a valid s. 7 expense. If not...
      2. s. 7(1.1)(b): the court can, after considering the five factors listed, consider additional expenses extraordinary.
  4. Proportionality: if the expenses are determined to be extraordinary, the cost should be shared proportionally based on income.
    • Here, the husband's income (including the expected bonus) was 84% of total income, so an order was made for him to cover 84% of the school expenses.

In the case at bar, the wife had not made claim for ancillary expenses, such as uniforms, hence the judge said that she should bear those on her own. Had they been requested, it is likely they would have been lumped in with the tuition expenses.

RatioEdit

Provides the analysis for extraordinary expenses under s. 7 of the Federal Child Support Guidelines.

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