Back to School: Banaszek Family Law explains section 7 extraordinary expenses

Although COVID-19 has created many uncertainties surrounding the “back to school” season in Alberta, one thing remains constant for many separated parents – confusion about section 7 expenses and how to divide them.

In today’s blog, Adrianna Banaszek explains which expenses are classified as section 7 expenses to ensure a smooth transition into a new school year for separated parents and their children:

What is a Section 7 Expense?

In Canada, there are two types of child support obligations: section 3 (base/table support) and section 7 child support (special and extraordinary expenses). If you would like to learn more about child support, read our blog titled: The Basics of Child Support.

The Federal Child Support Guidelines (the “Guidelines”) define “special or extraordinary expenses” as expenses that are:

• necessary because they are in the child’s best interests; and

• reasonable given the means of the parents and the child and in light of the family’s spending patterns before the separation.

This means that determining what will be included as a section 7 expense also depends on the lifestyle of the family before separation, along with the reasonableness of the expense incurred for the child given their needs. Every family and each child’s needs are unique, making the qualification of section 7 expenses circumstantial to some extent.

Special and extraordinary child-related expenses are governed by section 7 of the Guidelines, and are apportioned between separated parents based on each of their respective incomes (each party pays the expense in proportion to their guideline incomes). Section 7 expenses capture those expenses which exceed the ones the parent requesting the support can reasonably cover by section 3 child support (they are not the “every day” expenses).

Special expenses typically include post-secondary school or private school tuition, medical expenses, extracurricular expenses, child care expenses, and other child-related costs.

Considerations for sharing Section 7 Expenses

If the section 7 expenses are eligible to be processed through a health benefits plan, you must only share the outstanding out-of-pocket cost in proportion to your guideline incomes. To determine which amount of a section 7 expense is eligible for division between the parents, the court will take into account any subsidies, benefits or income tax deductions or credits relating to the expense, along with any ELIGIBILITY to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

If you believe that the other parent is inappropriately claiming a section 7 expense or requesting that you pay way more than you should be, contact our office to review your matter.

Does childcare qualify as a Section 7 Expense if I am not working?

The short answer is: NO. The Guidelines outline that childcare is classified as a section 7 expense if it is required as a result of a job, an illness, a disability, or educational requirements for employment if the child spends most of the time with that parent.

Need help calculating child support? Banaszek Family Law is here for you.

Still have questions or issues managing section 7 expenses? Banaszek Family Law is here to help you! During this time, all of our initial consultations are being scheduled as a telephone or video conference call at discounted rates.

Banaszek Family Law wants to see you and your children excel this school year! ●

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Co-Parenting During a Global Pandemic: Banaszek Family Law explains your legal rights and responsibilities

Parenting with an ex-partner can be an exhausting undertaking, fraught with stress if the parents do not communicate effectively or cooperate with each other. Co-parenting has become even more challenging for some since the outbreak of COVID-19. Canadian courts are weighing the potential threat of COVID-19 compromising a child’s health against depriving access to both parents.

Banaszek Family Law explains your custody rights and responsibilities during this time when tensions are high and access to the Courts is limited:

Can parenting time be restricted because of COVID-19?

Most Canadians are practicing social distancing to do their part to flatten the curve and contain the virus’ spread, leading some parents to wonder if it is "safe” or appropriate to share custody during this time. We are turning to health authorities and the Courts to understand what parenting rights and responsibilities are during this unprecedented time.

Alberta’s Chief Medical Officer of Health, Dr. Deena Hinshaw, has clarified that the current social distancing restrictions do not mean that “parents or children would need to choose which household they stay in” and restrict parenting time as a result. Dr. Hinshaw has also stated that parents should do their best to contain the number of people their families are in contact with.

Courts across Canada are being flooded with urgent parenting disputes and deciding whether the introduction of harm caused by COVID-19 contact or spread to the children is an element worthy of breaching a parenting arrangement.

In a recent BC parenting dispute heard by the Provincial Court, the father restricted the mother’s parenting time because she is a health care worker who treated a patient diagnosed with COVID-19. The father also continued to work on site projects for his demolition company with some restrictions. The Judge found that parenting time should be reinstated for the mother as she mitigated her risk of contracting COVID-19 and the risk is not escalated to the point that the child should be deprived of parenting time with her.

The Judge based his decision on what is in the best interests of the child during the pandemic and weighed the following relevant factors in coming to the decision:

• Whether the child is at an elevated risk of suffering the more severe consequences of the virus;

• Whether either party, or those in their household are at an elevated risk of suffering the more severe consequences of the virus;

• Each party’s exposure to the risk of contracting the virus;

• Steps taken by each party to mitigate the risk of exposure;

• All of the relevant factors listed in the BC Family Law Act, including:

  • The child’s health and emotional well-being;

  • The child’s views, where appropriate (depending on age and maturity);

  • The child’s relationship with each parent;

  • The history of the child’s care;

  • The child’s need for stability, given his age and stage of development;

  • Each parent’s ability to exercise his or her parental responsibilities;

  • The ability of each party to cooperate in parenting the child; and

  • In the larger context, society’s need to maintain and access resources in the community, including health care and other ventures that provide services and income for families in a safe manner over an extended period of time.

Can I litigate my parenting matter during the pandemic?

Access to the Alberta Courts is being restricted in an effort to reduce the spread of COVID-19. The Alberta Court of Queen’s Bench and the Provincial Court of Alberta is only hearing urgent or emergency matters until further notice.

Emergency matters are being classified as matters of the highest priority, requiring immediate attention. The Alberta Courts consider emergency matters as ones in which serious consequences to persons or harm to property may arise if the hearing does not proceed, or if there is a risk of loss of jurisdiction or expiration of an existing protection or restraining order. For family law matters, these include:

• Orders where there is a risk of violence or immediate harm to one of the parties or a child;

• Orders where there is a risk of removal of a child from the jurisdiction; and

• Emergency Protection Order reviews.

If you believe that you are being denied parenting time unreasonably or if you believe that your children are at risk of contracting COVID-19 due to the parenting arrangement in place, contact Banaszek Family Law to set up an initial telephone consultation today by completing the online intake form. Upon submitting a consultation request, you will be contacted to schedule your initial consultation promptly.

Before an urgent matter is heard by the Court, the party claiming urgency must provide specific evidence or examples of parental behaviour that creates a level of urgency. The responding party must also assure the Court that the concern is unwarranted. There is an onus on both parents to act responsibility and attempt to problem-solve before initiating urgent court proceedings.

In a recent Ontario family decision, the mother in a joint custody arrangement applied to have the court hear her application on an urgent basis to deny the father access to the child because of the threat of COVID-19. This application was denied by the Judge, finding that it was not of an urgent nature.

Justice Pazaratz found that vague concerns about the other parent not exercising social distancing did not meet the high test of urgency.  He found that parents “…should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time.”  This case is currently the leading Ontario case on urgency for custody and access issues during the pandemic and sets a precedent which judges across the country will consider.

Banaszek Family Law is here for you

As we experience an unprecedented global shift as a result of the novel coronavirus, the legal landscape is changing and adapting. The legal counsel you retain should understand the impact this state of emergency has on your legal rights and obligations as a parent.

Banaszek Family Law continues to operate during this time with measures in place to protect our community. To ensure that we are doing our part to flatten the curve, we are practicing social distancing and all client meetings are taking place over the phone or by video conference.

At an initial consultation with Banaszek Family Law, you will receive independent legal advice to decide whether your custody dispute qualifies as urgent enough to litigate during this time. If your matter requires immediate resolution but it is not urgent enough to be heard by the Courts in Alberta, there are other dispute resolution options which may be employed.

If you require independent legal advice with respect to your family law and/or divorce matter, contact Banaszek Family Law to schedule a telephone consultation with Adrianna Banaszek, HERE. We are pleased to offer a discounted rate during April 2020 for telephone consultations.

Banaszek Family Law is here to assist you with your parenting matter during this unprecedented time ●

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Virtual Parenting: Banaszek Family Law explores the impact of virtual parent-child contact

The increase of virtual technology options, paired with ease of accessibility, has removed many barriers for parents to communicate with their children post-separation. But, we should not kid ourselves - all that glitters is not gold! Parents who rely (to varying degrees) on virtual technology to maintain relationships with their children often experience additional conflict with the custodial parent due to the introduction of the technological “godsend”.

Adrianna Banaszek, family lawyer and founder of Calgary-based law firm Banaszek Family Law, explains how the booming virtual technology sector has both positive and negative effects on children and their parents post-separation, and how common use of these alternate parent-child contact methods may develop a new legal landscape in Alberta.

What is Virtual Parenting?

“Virtual parenting” refers to parent-child contact and communication through the use of virtual technology.  Virtual parenting is usually parenting from afar through a plethora of communication means, including, text messaging, email, Skype, FaceTime, communicating through social networking sites, and good old-fashioned telephone calls.

Technology allows separated parents the option to increase communication and contact with their children when they are not the primary (custodial) caregiver or during the other caregiver’s parenting time. Whether the risks outweigh the benefits of these alternate modes of communicating for parents and their children is still out for debate.

Virtual tech is shaping the legal landscape

What is certain, however, is the judicial notice that virtual technology is receiving in the Alberta Courts when it comes to decisions about parenting arrangements. There is no doubt that technology has allowed parenting time to take place in situations where it likely would not otherwise. For instance, long-distance parenting arrangements are made possibility with communication technologies. The Alberta decision of BRH v RPS, 2016 ABQB 346, highlights that the use of virtual technology is a factor weighed in mobility applications (parents who wish to relocate the child to another jurisdiction) and long-distance parenting arrangements. Justice R.A. Graesser stated as follows:

[107] Technology will undoubtedly play a role. With technology, the absent parent can have daily face-to-face time with their child via Skype or Facetime, such that communications during non-parenting periods are not limited to one-dimensional telephone calls or written communications.

Although this particular case did not turn on maximizing contact between the parties, notice was taken of the parenting opportunities technology would afford (para 108). This decision was later appealed and the appellant mother was granted primary care of the child with the ability to relocate the child to Spain. Although the success of the appeal did not hinge on the role virtual technology would play, it was considered in allowing the father (non-custodian parent) generous access to his child who was to move overseas in between holidays and summers when in-person parenting time would be realized.

Is virtual technology an aid or a grenade for co-parenting?

Although virtual technologies are common place in the Western world today, there has been minimal research conducted about whether and how virtual parent-child contact impacts children, their parents and the parenting relationship post-separation. The minimal empirical research is most concerning when it comes to families involved in high-conflict disputes, which often stem from poor communication, lack of trust between the parties, and/or mental health issues.

Luckily, Dr. Rachel Birnbaum, is asking these very important questions through her research. Dr. Birnbaum is a social work professor at King’s University College, Western University, where she focuses her research on family justice issues. She conducted a survey which asked the following questions:

1. What conflicts, if any, do adult and child clients report as a result of using any type of technology for parent-child contact?

2. What benefits and challenges do family justice professionals believe about the use of virtual technology as a means of parent-child contact?

The Parents Report

The parents participating in the survey reported that the majority of conflicts occurred as a result of the following:

• 60% reported that the other parent listened in on their conversation with the child.

• 35% reported that the other parent alleged that the child is too busy doing something else at the designated virtual parenting time.

• 41% reported that the child is not available for the call at the designated time.

• 4% reported that the other parent alleges that they do not know how to use or set up the virtual technology to allow for the access.

• Other reasons conflict occurred: using the time to harass the custodial parent, using the child to harass the non-resident parent and child support/inappropriate discussions with the child, and some parents reported that they don’t want their children using technology due to safety or confidentiality concerns.

The Children Report

The children participating in the survey reported that the majority of conflicts sometimes occurred as a result of the following:

• 55% reported that conflict arose as a result of the child being busy and not always wanting to talk to the other parent at the time.

• 45% reported that the child does not have a lot to say to the other parent and the other parent gets upset due to this.

• 39% reported that the other parent is listening to the conversation during the parent-child contact.

Children mostly expressed that although virtual parenting was advantageous, virtual access did NOT alleviate their longing for their parent, and that the virtual parent contact increased their anxiety and sadness about the absence of physical contact with their non-resident parent.

The Lawyers Report

The survey found that from the perspective of family justice professionals, the risk of using virtual parent-child contact is for evidence gathering, meaning the contact is sometimes focused on planning future litigation rather than to strengthen the parent-child bond. The majority of professionals concluded that the benefit of virtual contact is that the child may maintain contact with their parent over geographical distances (beneficial for mobility applications and to foster the parental-child bond).

Benefits and challenges of parenting via virtual tech

Dr. Birnbaum’s survey findings support that there are both risks and rewards surrounding virtual parent-child contact. The risks as identified by the parents result mainly from privacy and confidentiality and the burden placed on the custodial parent to organize the parent-child contact. The benefits include that the child may maintain an ongoing relationship with a parent that they are not constantly in-person contact with. It also has the potential of reducing hostility between parents because they have no contact (or minimal contact) with each other – this is more relevant for children who are older and able to use the technology without assistance or supervision from the other parent.

The findings are important as this is a time when virtual parent-child contact is increasingly being recommended by family justice professionals and the court as a means of maintaining parent-child relationships post-separation. Dr. Birnbaum notes that more research is required to determine the impact of the relative costs and burdens to parents having to provide the technology and how much adult assistance is required to organize and have the child available at the designated time, along with examining the safety risks underlying the use of the different types of technology.

*The study is limited by the sample size.

Implementing virtual parenting post-separation: Whose job is it, anyway?

The short answer is: it is the responsibility of both parents. Although the custodial parent may not believe that they benefit from their child interacting with their ex-spouse or the other parent in situations of high conflict, Canadian courts are very clear that for children to maintain relationships with both parents, both parents must be involved. Maintaining relationships with both parents after the parties have separated is highly valued by the Courts and it is considered to often be in the best interest of the child.

Canadian courts have ruled that custodial parents have an obligation to promote compliance with custody and access orders and cannot simply leave the questions of custody and access up to the child. This means that there is an obligation on the custodial parent to actively facilitate access with the other parent by ensuring that the children are available for the virtual or in-person parenting time. For more information on access enforcement, read the Department of Justice Canada’s Overview and Assessment of Approaches to Access Enforcement: An Update by Dr. Martha Bailey.

Need help crafting a parenting plan post-separation? Banaszek Family Law is here for you.

At Banaszek Family Law, we offer independent legal advice and representation to serve your custody and parenting needs, whether that is drafting a Separation Agreement which includes a comprehensive parenting plan, or representing you in your family law and divorce litigation.

Make the next move by scheduling your initial consultation with Adrianna Banaszek today, HERE ●

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