Who Pays for a Child’s Special Needs After Separation?

Many children have special needs. For some, it is a physical disability or illness that requires special attention, and sometimes, special equipment, medications or supplies. At other times, it is a learning disability, that requires special attention in school, or perhaps tutoring, occupational therapy, or other services. Sometimes it is a mental illness, such as anxiety or depression, which can also require special services. Perhaps, it is a developmental delay or disorder, such as something on the autism spectrum, or another concern, which can require lots of special services to assist the child. Even the testing related to determining what a child’s needs may be can cost thousands of dollars.

These services, equipment, supplies or medications can be very expensive. The expenses can far exceed what is covered by base child support. In Ontario and Canada, the base amount under the Child Support Guidelines, may not be the full amount of child support. Additional large expenses may be shared by the parents, in proportion to their incomes, pursuant to section 7 of the Child Support Guidelines, which covers Special and Extraordinary Expenses.

Many people have heard that parents only have to contribute to section 7 expenses either if they agree, or if they agreed to them prior to separation. After separation, support-paying parents sometimes refuse to pay for large expenses such as private school or hockey because they say they “cannot afford it.” Affordability and agreement to pay can be requirements before a parent has to contribute to expenses on top of paying child support.

However, it is important to realize that when we talk about “special and extraordinary expenses” it often sounds like they are grouped together. However, under the Child Support Guidelines, special expenses are different from extraordinary expenses. The differences can be important.

Extraordinary expenses are “nice to have” items. They are large expenses, relative to the parents’ incomes, that may be difficult to afford but could benefit the child because of the child’s special talents. These are expenses that benefit children. But, they are not always affordable, or the expense may be too large an infringement on a parent’s lifestyle. And, they may be expenses that one or both parents may feel that they should not have to pay, perhaps because of the costs, or perhaps because they just do not agree with them. For example, some parents are philosophically opposed to the concept of private schools and believe that children should be educated in a public school system. It may be wrong to force a parent, who believes that, to pay for a private school education that the parent would never have agreed to pay for if the parents had not separated.

Special expenses are different. These are large expenses that a child needs. They are not just “nice-to-have” expenses. They are things such as:

• mental or dental expenses over and above what is covered by the parents’ insurance;
• the portion of health insurance premiums that are related to the child.
• expenses for primary or secondary school education that are needed to meet a child’s particular needs;
• child care so a parent can work or go to school;

For special expenses, a Family Court Judge, or Family Law Arbitrator, considers the necessity and reasonableness of the expense and takes into account what money is available. But, if the expense is necessary, and the money is available, the parents will pay for these expenses. 

Obviously, the costs of services, programs, equipment and medication to meet a child’s particular needs fall under “special expenses.” If the parents have the money, or the parents can reasonably find the money, making the payments for the welfare of the child their first priority, then the parents must contribute to these expenses. Except in unusual circumstances, that contribution will be in proportion to the parent’s relative income.

Child support can get complicated when a child has special needs, or a parent’s income is hard to determine. Consulting a good family lawyer can ensure that the amount of child support is appropriate. John Schuman is not only a Certified Specialist in Family Law, but also a lawyer who has represented parents and children in leaving Education Law cases. He not only understands child support, but children with special needs, the programs and services those children may need, and how schools and the education system work. To contact him, either call the number at the top of the page or use the form below. You can also learn a lot more about child support, and most other family law issues, including how the Family Court System, and the alternatives to Family Court, work, by picking up a copy of his easy-to-understand best-selling book on Ontario Family Law.

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