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Article written by Kim Brown
The holidays are fast approaching, and parents who still need to buy gifts for their children may be feeling more than a little bit stressed out.
For separated and divorced parents, this stress is often heightened: No parent wants their child to be impacted by the fact that their Mom and Dad have chosen to part ways. Fortunately, even the most disharmonious of former couples can usually find a way to put their differences aside in order to make their child happy.
That being said, gift purchasing can be another source of frustration and resentment, if viewed through the lens of the day-to-day struggle around communication, co-operation and financial contribution between two parents who no longer get along. This is especially true if one parent goes on a shopping spree, and then expects the other parent to foot half of the bill.
But can one parent “force” the other parent to contribute to the cost of a gift bought for their child?
The short answer is this: Unless there is a separation agreement stating otherwise, each parent is separately “on the hook” for the cost of any gifts (or cash) they may wish to give to a child. This applies whether the gift is modest or lavishly over-the-top: Under Canadian Family Law, courts are not entitled to force the hand of the other parent to contribute. Rather, those kinds of expenses are incurred by each parent independently, and are considered part-and-parcel of normal parenting.
To get a better understanding of why parents are not obligated to split the “extra” child-related expense, it may be helpful to look at how courts make decisions about child support.
Section 7 Expenses – “Special” and “Extraordinary” Expenses
Under Canadian divorce law, section 7 of the federal Child Support Guidelines (the “Guidelines”) partly governs the financial obligations that a court can impose on parents as part of a child support order. Referred to as “special” or “extraordinary” expenses, these are expenses that exceed those that the paying parent can reasonably cover, taking into account his or her income and other factors.[1] But if the requesting parent can reasonably cover them but still requests contribution from the other parent, then the court must still consider whether they should be classified as “extraordinary”, taking into account: the child’s special needs and talents, how many educational programs/activities the child is enrolled in, and the overall cost.[2]
After considering certain factors (namely the child’s best interests, the family’s pre-separation spending habits, and the reasonableness in relation to each parent’s means[3]) a court may order a parent to pay part or all of certain costs for the child’s benefit, in proportion to his or her income.[4]
“Special” expenses and “extraordinary” expenses, as defined by the Guidelines, are narrow and very strictly defined.
“Special” expenses, as defined by section 7, include:[5]
- The custodial parent’s child care expenses;
- Premiums for the child’s medical and dental insurance
- Certain health-related expenses
- Expenses for post-secondary expenses
The list of special expenses found in section 7 of the Guidelines is considered to be exhaustive.[6]
Similarly, “extraordinary” expenses are of only two defined types:[7]
- extraordinary expenses for primary or secondary school, or other educational programs that meet the child’s needs
- extraordinary expenses for extracurricular activities.
So Back to Those Holiday Gifts…
With all that said, it’s important to note that nowhere in section 7 of the Guidelines does it mention “gifts” for the child (and the more open-ended “extraordinary expenses” category is specifically tied to the child’s education and extracurricular activities).
How it Plays Out
Even though gift giving by a parent can be entirely appropriate to the occasion, and even if common sense dictates that the cost should be shared, the law dictates otherwise. Here are some real-life examples:
- In a recent case, perhaps aptly named Noël v. Noël,[8] the separated parents went to court to sort out how to allocate the costs for various child-related expenses they each claimed to have incurred for their daughter. The mother was claiming about $5,000 for mainly hockey-related items and a cell phone, but her list also included the cost of a birthday gift. The father had his own list, also mainly hockey-related, that totaled $10,000 for a two-year period.
Although the father was prepared to split the cost of the hockey and cell phone, he objected that the birthday gift did not come under the category of extraordinary expenses. The mother (and the court) eventually agreed; the court went on to order that the parents split all the other listed expenses in proportion to their respective income.
- In Fournier v. Broatch,[9] the father claimed reimbursement from the mother for large additional expenses he said he incurred that were over and above his child support obligations, and wanted to be credited for them. These included Christmas gifts. In declining to give the father credit for these in the overall tally of who-owed-what, the court said:
Fathers give their children gifts and support them with pocket money. Grandparents do likewise. Many are very generous because that is their nature. However that kind of financial support should not be confused with child support obligations.…
- Finally, in a very recent case called Younger v. Younger,[10] the mother had claimed for various expenses incurred on behalf of the child. These included items such as the cost of gas needed for driving, personal hygiene items, and cash birthday gifts. The court found that these did not qualify as special or extraordinary expenses, but rather were the “ordinary expenses normally incurred as part of regular parenting.”
Note that for parents in this position, the Younger case offers another lesson: Even for legitimate section 7 expenses, don’t go off on a spending spree without consulting your Ex first.
In that last case, the parents had racked up about $68,000 in valid extraordinary expenses for the child, relating to things like school trips, orthodontics, music lessons, and cell phones. The court “did the math” and allocated the mother’s share as $23,000, and the father’s as $45,000. Even though the father had underpaid on even the legitimate extraordinary expenses by about $19,000, the mother had incurred a significant portion of those costs without getting his consent first. This made it unreasonable for her to demand that he pay the entire amount after-the-fact. The court downgraded his obligation to $15,000 rather than the full $19,000. For the future, the court also took the extra step of narrowing down the category of special expenses that the parents would be required to the share the cost of, to such items as basic health care and educational expenses, and required them to each provide the other with information and a rationale, in advance, of why the proposed special expense was necessary.
Co-Operation: The Gift That Keeps on Giving
While the courts are not entitled to compel monetary contribution by parents on their child’s gifts, financial input can still be encouragedwith the right co-operative approach.
Here are some practical points to consider:
- Communication is key. As with everything, open discourse between separated and divorced parents is the cornerstone of resolving any issues. For example, if you and your Ex have informally agreed to share the expense of a Christmas gift jointly, and your Ex goes out and blows a bundle on an item you consider frivolous, the first step is to talk it through, and to learn from the experience that setting guidelines around spending for even joint items is necessary. The better approach, however, is to talk it through in advance.
- Negotiate. If you and your Ex have not already agreed to share gift-giving costs by way of a formal separation agreement, or if this is not covered by a court order, there is still nothing stopping you from doing so informally. And you can get creative. For example, one of you may opt to quietly pay for birthday presents, while the other might be more generous with year-round activities like weekend outings to indoor playgrounds. Even if the net amount spent by each parent is not identical, any disparity in cost may be worth it for keeping the peace between parents in the long run.
- Do Not Involve the Child. Even if you are routinely the parent who is left to spring for the cost of a birthday gift or holiday token – and even if your Ex does not make the slightest effort to pull his or her weight – try not to vent your irritation to the child. Call on friends, call on your therapist, but don’t malign your Ex in front of the child for his or her apparent thoughtlessness, lack of caring, or lack of generosity.
- Do Not Blame Your Ex, or the Divorce or Separation. If money is tight and gifts are necessarily modest, try not to draw a direct connection between the divorce or separation and the lack of money (even if it’s true). Although you should not pretend that the divorce has not impacted your finances, avoid pointing fingers, especially if your child is young or if gifts are important to him or her.
- Avoid Running to Court Every Time. Aim for co-operation and try to work through issues outside of court if possible. While it may be tempting (and vindicating) to have a court side with you on smaller matters such as who should pay for what, you should avoid having a court make these kinds of smaller determinations every step of the way. A better approach is to try to negotiate with your Ex in a sensible, rational way, since it will save time and money (in terms of legal costs), and will hopefully set a positive precedent for the future, should similar issues come up.
And with all that money saved in court costs, there will be more money for gifts!
[1] Guidelines, s. 7(1.1)(a).
[2] Guidelines, s. 7(1.1)(b). See also Bodine-Shah v. Shah,2014 BCCA 191 (CanLII), at para. 66.
[3] Guidelines, s. 7(1).
[4] Guidelines, s. 7(2).
[5] Guidelines, s. 7(1)(a) to (c), (e).
[6] See for example Delichte v. Rogers, 2013 MBCA 106 (CanLII), http://canlii.ca/t/g25vv
[7] Guidelines, s. 7(d) and (f).
[8] 2016 ONSC 3724.
[9] 2010 ONSC 2768 (CanLII), http://canlii.ca/t/29vpb
[10] 2017 BCSC 363 (CanLII), http://canlii.ca/t/h08tw