Examining expensive extracurricular activities in the context of child support
Often children will be involved in high-level sports or other recreational activities that come with a hefty price tag. Naturally, this can become a point of dispute between separated or separating parties, who may disagree on whether money should be expended for said expense.
These extra curricular activities, if accepted, fall under section 7:
7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, 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 parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:
(f) extraordinary expenses for extracurricular activities.
The court will only grant the expense if it is sufficiently necessary and reasonable. This is summarized in Ward v Ward, 1999 CanLII 14973 (ON SC), where the court stated:
I think three questions should be asked, and in this order:
• Is the expense necessary in the sense that it is the best interests of the child that it be incurred?
• Is the expense reasonable, having regard to the means of the parents and those of the child and to the spending pattern of the parents in respect of the child during cohabitation?
• Does the non-custodial parent have the ability to pay a pro rata share of the expense (or, failing that, any share)?
More recent case law has dealt with expensive extracurriculars using similar considerations. In Heffren v Silverthorn, 2017 ONSC 3122, the big-ticket item in consideration was one of the child’s music expenses and the court explained:
With any expense under s.7 of the guidelines the court must consider:
1) the necessity of the expense having regard to the child's best interests
2) the reasonableness of the expense in relation to the means of the parents, and
3) the spending pattern of the parents during cohabitation.
…I find that the music expenses for Kael do qualify under this subsection of the guidelines. Kael has been devoted to his music studies since a young age. He has demonstrated special talent. Music has become more than a mere recreational activity for him. His invitation to an advanced level military camp for six weeks this summer is the product of his musical versatility and skill with several instruments. His participation at the camp may pave the way to Royal Military College and his dream of veterinary medicine. There is a realistic possibility his music will lead to a post-secondary scholarship. In that sense the cost may prove to be an investment, not just an expense. The cost of lessons is significant, especially in the context of the other activities the applicant is paying for outside the "extraordinary" catchment. The cost of his violin ought to be included as it was within a reasonable cost range. I also include the music expenses for Jesse for 2010-2012 because they continue a pre-separation activity and for most of that period the applicant was on disability with significantly less income.
I accept the applicant's evidence that she has paid $12,377 in the past for the music lessons. She first advanced her claim early in this litigation in early 2011.There is no reason to deny any of the older expenses.
The respondent is ordered to pay 45 percent of the $12,377 ($5,570) for the period to date. Going forward he is to pay that same percentage, which approximates the pro-rated incomes of the parents. Going forward he is only required to reimburse the applicant upon presentation of a third-party receipt for the expense. The modest children's activity tax credit has been discontinued and is not a significant factor.
In Heffren, the court was very interested in what could be gained from the child’s musical talents. The court concluded that by the parents’ further investment in the child’s abilities, the child could potentially get a scholarship and it could potentially assist them toward their goal of becoming a veterinarian. Having found that the father could afford the expense, the court found that the requirements for said expense were met and therefore awarded.
In Guertin v Dumas, 2020 ONSC 4002, the parents were fighting over whether the daughter should be allowed to enrol in expensive cheerleading. Unlike the previous case, however, the court made note of the fact that no scholarship or career could be gained from cheerleading. The court explained:
The only issues on the Motions about which Mayla's views and preferences were made known to the court are those respecting Cheer. In that regard, I note that Mayla has, since 2017, been represented by the same counsel. Mayla is described by her counsel as a polite and respectful child, a "big fish" at her school, and "adamant" about continuing with Cheer. Mayla refers to Cheer as her "passion" and with both "excitement" and "pride". Mayla has friends in Cheer and outside that community.
The importance of Cheer in Mayla's life is reflected in the submissions made on her behalf on the return of the Motions. It is also reflected in the submissions made on Mayla's behalf before Master Fortier in August 2019. Mayla was aware of her parents' court appearance on that date. She was reported to be "extremely stressed" by the prospect of not being able to return to Cheer for the 2019-20 season.
On the return of the Motions, the court was informed that Mayla was once again aware of the court appearance and "extremely worried" that she might not be permitted to complete the 2019-20 competitive season. Mayla did not want to let her teammates down by leaving the team partway through the season.
For the oral reasons given at the conclusion of argument on the Motions, the 2020 Order provides for Mayla to continue Cheer for the balance of the 2019-20 season. That season was undoubtedly cut short because of the COVID-19 pandemic. What remains to be determined is whether Mayla continues in Cheer or returns to a recreational-level program.
Mayla will turn 11 years old in August 2020. She did not choose Cheer with a view to either post-secondary education or a career. Having been introduced to Cheer through a recreational-level program, Mayla developed a passion for the activity and enjoys the friendships she has gained. Based on the submissions made on her behalf on the return of the Motions, Mayla has clearly learned the importance of teamwork and the significance of committing to a team.
I find that Mayla has benefitted and continues to benefit from participation in Cheer. Mayla is fortunate to have an extra-curricular activity about which she is passionate and from which she benefits personally.
I turn now to the significant expenses associated with Cheer — in the thousands of dollars per competitive season. The parties agree that Mayla's participation in a cheerleading program falls within the scope of s. 7 expenses. Their agreement in that regard can, however, only extend so far as the expenses incurred are "reasonable and necessary".
Reasonableness takes into consideration the parties' means. I agree with the mother that both parties are of modest means, and that incurring expenses of $5,000 or more on an annual basis for a single activity is not reasonable. It is not reasonable to expect either of the parties to fund an activity that is as expensive as Cheer. The father is, however, prepared to fund Cheer as something above and beyond a s. 7 expense.
In summary, I find as follows:
• It is reasonable for Mayla to participate in at least one extra-curricular activity;
• It is reasonable for the parties to share, as a s. 7 expense, the cost of Mayla's participation in a recreational-level program — whatever the activity; and
• If Mayla pursues Cheer, then the father shall be solely responsible for funding the difference between the cost of a recreational-level cheerleading program and the total of the costs associated with Cheer (i.e., registration, travel, et cetera).
The difference between the parties' respective imputed incomes is nominal in the context of their respective shares of s. 7 expenses. In light of the father's willingness to fund the difference between a recreational-level cheerleading program and Cheer, I find that it is reasonable for the parties to share equally in all other s. 7 expenses.
In Guertin, the court emphasized that the child was receiving personal benefits especially relevant to character development, rather than the prospect of a scholarship. It was also significant to the judge that the child was very passionate about cheerleading and feared having it taken away from her. Having made these findings, the expense was sufficiently necessary. The expense, at $5,000 on an annual basis, coupled with the parties’ modest income, would likely have been unreasonable but for the father’s willingness to cover the majority of it.
In Richer v Freeland, 2019 ONSC 6840, the question came down to whether the father should be required to contribute to rep hockey or if house-league hockey, at a lesser expense, satisfied all of the needs of the children making rep hockey unreasonable and unnecessary. Ultimately, the court found that rep hockey was in the best interests of the child given the self-esteem, teamwork, friendships, family camaraderie and structure it provided to the children. The court agreed that rep hockey was expensive but that it was apparently within the means of the family.
Obvious takeaways? In assessing a relatively expensive extracurricular activity, and whether it is necessary and reasonable, the court ultimately looks first to the benefits of the children in question. In the few cases examined, the courts noted the importance of educational, financial, and future-oriented benefits that an activity may provide to a child. For instance, if there is a strong possibility a scholarship could be gained, the court will likely find the activity to be necessary. However, in cases where only personal benefits could be gained, the court still has found that the activity could be in the best interests of the child and therefore necessary. The reasonableness of the expense will, of course, come down to the financial means of the parents and their historical spending habits related to the children.