nan THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2008 SKCA 94 Date: 20080721 Between: Docket: 1534 Todd Allan Gaspers and Lori Lynn Gaspers Coram: Gerwing, Smith and Hunter JJ.A. Counsel: Gregory G. Walen, Q.C. for the Appellant Deryk J. Kendall for the Respondent Appeal: From: 2007 SKQB 353 (CanLII) Heard: April 15, 2008 Disposition: Appeal dismissed Written Reasons: July 21, 2008 By: The Honourable Madam Justice Hunter In Concurrence: The Honourable Madam Justice Gerwing In Dissent: The Honourable Madam Justice Smith Hunter J.A. [1] have read the reasons for judgment of Madam Justice Smith allowing this appeal and setting aside the order of the Chambers judge on the basis that he acted without any evidence that certain activities of the children were extraordinary expenses within the meaning of the Federal Child Support Guidelines[1] (“the Guidelines”) and that he failed to consider and apply the definition of “special and extraordinary expenses” in s. 7(1.1) of the Guidelines. With respect, am unable to agree. see no basis for setting aside the decision of Justice Maher, who on variation application ordered the appellant (father) to pay his proportionate share of six of eleven extracurricular activities which the children were registered in and participated in at the time the application was made. The background information is set out in the reasons of Justices Smith and Maher. [2] In the respondent’s variation application, she requested an increase in the basic child support payment, including retroactive child support, and determination of the eligible expenses and proportionate share of s. expenses that each party should pay. Concurrently, the appellant applied for specified changes in the parenting arrangement. [3] On the evidence before him, the Chambers judge was satisfied the increase in income of the appellant, since the date of the consent order, constituted material change of circumstance. He concluded the appellant’s income was $147,000 and the respondent’s income was $53,744.68. Maher J. ordered the appellant to pay basic Guidelines child support of $2,532 per month. He calculated the appellant’s proportionate share and then ordered the appellant to pay 73% of the net day care costs and six specific extracurricular activity costs pursuant to s. of the Guidelines. [4] The only issue on this appeal is the order that the appellant pay 73% of Ashley’s Tae Kwon Do and soccer costs, Mitchell’s outdoor and indoor soccer costs and Makayla’s voice and soccer costs. [5] The appellant argues these expenses are ordinary and are not extraordinary within the meaning of s. 7(1)(d) and (f) and s. 7(1.1) of the Guidelines. [6] The respondent contends this Court should not interfere with the exercise of discretion by the Chambers judge and the result of the order which is that five of the extracurricular activities were found to be ordinary and six of the extracurricular activities were found to be extraordinary. The registration fees and lessons cost approximately $2000 to $2600 per year, exclusive of any transportation and incidental costs related to the activities. [7] agree with Smith J.A. that the appropriate standard of review which governs this Court is that decisions by Chambers judge in relation to child support orders are to be accorded significant deference. (Hickey v. Hickey[2] and Myketiak v. Myketiak.[3]) [8] Support orders involve the exercise of discretion by Chambers judge and the decision in each case is fact specific. In the ordinary course, family law Chambers judges would make numerous child support orders every week based on affidavit evidence, including interim and final orders, pursuant to initial or variation applications. In most cases, the issues in dispute between the parties concern ascertaining the income of the parties for the purposes of the basic Guidelines support order and the identification of the s. expenses which may be subject to an order for proportionate cost sharing. The issue of defining extraordinary expenses within the meaning of s. 7(1)(d) and (f) of the Guidelines is the common, routine, usual and everyday function of family law Chambers judges and is based on the evidence filed in support of the application. For this reason, the Chambers judge’s decision is entitled to significant deference. As stated in Myketiak at para. 21, quoting from the decision of the Supreme Court of Canada in Hickey: “… Though an appeal court must intervene when there is material error, serious misapprehension of the evidence, or an error in law, it is not entitled to overturn support order simply because it would have made different decision or balanced the factors differently.” [9] In s. 7(1) of the Guidelines, the expenses are listed that may be included in child support order, including extraordinary expenses in s. 7(1) (d) and (f). It provides that an order may cover “all or any portion” of the listed expenses. The factors to be considered in making such an order are the necessity of the expense with regard to or in relation to: 7. (1) the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation. [10] Further, the amendment in s. 7(1.1) clarifies the meaning of “extraordinary” for the purposes of s. 7(1)(d) and (f). In s. 7(1.1)(a), extraordinary means those expenses that exceed the amount that can reasonably be covered by the income (including the basic monthly support ordered in accordance with the Guidelines) of the recipient spouse. Use of the word “reasonably” indicates the discretionary nature of this determination. [11] If s. 7(1.1)(a) does not apply, the factors the court must consider in determining whether the expense is extraordinary are listed in s. 7(1.1)(b). Those factors are the expenses of the activities in relation to the total income of the recipient spouse, the nature and number of activities, the special needs or talents of the child(ren), the overall cost of the activities and “any other similar factor that the court considers relevant”.[4] In my view, these factors indicate the significant discretion reposed in the court of first instance to determine what is or is not an extraordinary expense based on the evidence before the court. An important consideration is the total income of the spouse in receipt of child support but there is no formula and the court must have regard to the evidence before it concludes whether all, some, or none of the expenses in s. 7(1)(d) and/or (f) are extraordinary. [12] To enable the court to exercise its discretion, the parties file information about their respective incomes, financial statements indicating their annual expenses, the participation and needs and information about the children with respect to the extracurricular activities, together with the approximate costs of the activities and the other expenses enumerated in s. 7(1). In accordance with s. 7(1), the costs may be estimated. This allows the court to make general order with respect to the proportionate share of the expenses the court concludes comes within the enumerated list of expenses in s. 7(1), to be paid by payor spouse. [13] In his affidavit, the appellant provided the following information and his position with respect to the extracurricular activities of the children: 7. At the time of negotiating and agreeing to the Child Support Order, Ashley was involved in horseback riding lessons and soccer, Mitchell was involved in Can-Skate and Soccer, and Makayla was involved in Can-Skate and voice lessons. 8. Initially the Petitioner wanted me to contribute proportionate share towards the children’s activity costs. Given the high amount of base child support disagreed that these were extra-ordinary expenses, 9. The Petitioner then abandoned her claim for the sharing of extra-curricular activities and accordingly there was nothing included in the Child Support Order. 10. The children’s activities have slightly changed. Ashley is involved in Tae Kwan Do and soccer, Mitchell is involved in soccer and Makayla is involved in voice lessons and soccer. The costs are similar to those costs negotiated in the Child Support Order. 16. am prepared to agree to an annual Guideline income of $147,000.00 in order to calculate the support payable for the months of August through December 2007. This would require Table support payment by me to the Petitioner in the amount of $2,532.00 and propose that this begin on September 15th, 2007, being the first month will receive my new rate of pay 17. continue to oppose any claim for retroactive child support and Section expenses, other than the Petitioner’s net of tax monthly daycare expenses incurred for work reasons. [14] In her affidavit, the respondent provided the following information and her position with respect to the extracurricular activities of the children: 8. That am also requesting that the Respondent pay his proportional share of orthodontic expenses, optical expenses, and extraordinary expenses for certain activities the children participate in. 9. That our daughter Ashley completed Grade and participates in Tae kwon Do, outdoor soccer, piano lessons and swimming lessons. 10. That our son Mitchell will attend Grade in the fall of 2007 and is involved in outdoor soccer, swimming lessons, piano lessons, and indoor soccer. He is very athletic and wishes to pursue certain other athletic activities. 11. Our daughter Makayla is very involved in soccer, as she plays year round, as well as swimming and music lessons. She is very active six year old and will be attending Grade in the fall of 2007. am requesting the respondent pay his proportionate share of certain extracurricular activities she participates in. 13. That have attached copy of numerous receipts that have paid for expenses for the children’s activities over the past ten months. 14. That make this Affidavit in support of my Application for updated child support; and updated proportional share of the children’s S.7 expenses. [15] All the information needed to determine the s. 7(1)(f) expenses eligible for proportionate sharing was before the Chambers judge. Maher J. knew the total income of the recipient spouse. He knew the previous extracurricular activities and the 11 current extracurricular activities which the children participated in with the estimated annual cost of approximately $2000 to $2600. Updated financial statements were filed by both the appellant and respondent. Together with the information submitted by the parties about the children and the extracurricular activities, the Chambers judge exercised his discretion and granted an order requiring the appellant to pay his proportionate share (73%) of the extracurricular activities he listed, which is approximately one-half of the children’s extracurricular activities. [16] The Chambers judge did not specifically say that he considered these to be extraordinary within the meaning of s. 7(1)(f) and s. 7(1.1) of the Guidelines. However, in the opening portion of his judgment, he identified one of the issues before him as: 4) determination of the proportionate share of s.7 expenses that each party should be required to pay, plus determination of eligible s.7 expenses. [17] In my view it is implicit in his conclusion that he found that approximately one-half (i.e., six) of the extracurricular activities were “extraordinary” within the meaning of s. 7(1)(f) and s. 7(1.1) of the Guidelines. Therefore, it follows that the Chambers judge, although he did not specifically articulate it, must have found one-half (i.e., five) of the children’s extracurricular activities were ordinary, which means the respondent is expected to pay the cost of the ordinary activities out of her income, including the child support of $2,532.00 that she receives monthly. [18] The Chambers judge had the necessary evidence before him that he is required to consider to make his decision whether all, some, or none of the expenses are extraordinary within the meaning of s. 7(1)(f) and s. 7(1.1) of the Guidelines. Accordingly, he did not make a palpable and overriding error, nor did he err in law and his conclusion is supported by the evidence before him on this application. There is no basis to interfere with the decision of the Chambers judge. Accordingly, I would dismiss the appeal with costs of the appeal to the respondent. DATED at the City of Regina, in the Province of Saskatchewan, this 21st day of July, A.D. 2008. “Hunter J.A.” HUNTER J.A. concur “Gerwing J.A.” GERWING J.A. Smith J.A. (in dissent) [19] This appeal is brought on a narrow ground from a judgment in the Court of Queen’s Bench granting variation of a child support order pursuant to s. 17(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd supp.). The appeal challenges the chambers judge’s interpretation and application of s. 7 (1.1) of the Federal Child Support Guidelines, SOR/97-175, which defines the term “extraordinary expenses”. [20] By way of background, the parties are parents of three children, daughter, Ashley born November 30, 1996, son, Mitchell, born April 25, 1999 and daughter, Makayla, born September 14, 2000. They separated in December of 2003. In January of 2004 they executed an interspousal agreement with terms relating to matters of custody, access, child support, spousal support, and division of the family property. In January 2006, the parties reconsidered the parenting plan and child support payable with respect to the children. These discussions ultimately resulted in consent judgment for divorce and consent child support order, both granted by Smith J. on August 31, 2006. The children were to be in the primary care of the respondent. The 2006 child support order established the appellant’s income at $75,683 and the respondent’s income at $55,100. The appellant was to pay child support in the amount of $1,376 monthly commencing May 15, 2006. The parties agreed that the appellant would pay 50% of the respondent’s after tax work related day care costs, but that the respondent would be responsible for all of the children’s extracurricular activities. [21] By notice of motion dated July 4, 2007, the respondent sought to vary the support order retroactive to May, 2006, including variation of the proportional share of the s. expenses, including day care, orthodontics, optometric, and children’s extraordinary activity costs on the basis of claim that the appellant’s total income for 2006 was $98,663. [22] variation order was granted by fiat dated October 2, 2007. The chambers judge held that there had been material change of circumstances based upon finding that the appellant had commenced new job in August, 2007, with gross employment income is $158,520 and prospective employment expenses of $11,500. He found his income for the purpose of ongoing child support to be $147,000, with proviso that the employment expenses be verified in his 2007 income tax return. Ongoing child support for the three children was fixed at $2,532 per month commencing September 1, 2007. In addition, retroactive order to January 1, 2007, was made based upon finding that his income at that time was $87,267. The claim for an order retroactive to May 1, 2006 was dismissed. None of this is under appeal. [23] In addition, the chambers judge found the respondent’s income to be $53,744.68, and therefore determined that the appellant’s liability was for 73% of all eligible s. expenses, commencing August 1, 2007. Again, there is no appeal of this determination, which the appellant concedes covers optometric, orthodontic and day care expenses. [24] However, the chambers judge also addressed the question of the children’s extracurricular activities in this one line in his judgment: He shall also pay his share of Ashley’s Tae Kwan Do and soccer costs, Mitchell’s soccer, and Makayla’s voice and soccer. (Fiat, at para. 17) [25] The appellant appeals only this aspect of the fiat, arguing that the chambers judge erred in ordering the appellant to contribute proportionately to the costs associated with the children’s extracurricular activities without finding that these were “extraordinary expenses” within the meaning of the Guidelines. It is the appellant’s position that these expenses cannot reasonably be considered “extraordinary” in the statutory sense, and that they are covered by the basic child support order of $2,532 per month, which, of course, comes to $30,384 per year, which the respondent receives tax free. This is in addition to the appellant’s responsibility for 73% of the children’s health care and day care expenses. [26] There is no question but that significant deference must be given by this Court to the chambers judge in relation to child support orders. This is particularly so to the extent that such orders involve the exercise of discretion. See Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] S.C.R. 518 and Myketiak v. Myketiak, 2001 SKCA 17 (CanLII), 203 Sask.R. 90, where this Court commented: [21] In Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] S.C.R. 518 the Supreme Court made it clear that appeal courts should not overturn support orders unless the reasons disclose an error in principle, significant misapprehension of the evidence, or unless the award is clearly wrong. Madam Justice L'Heureux-Dubé speaking for the Court at p. 526, para. 12 stated: There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard of appellate review recognizes that the discretion involved in making support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is material error, serious misapprehension of the evidence, or an error in law, it is not entitled to overturn support order simply because it would have made different decision or balanced the factors differently. [27] It is my respectful view that in this case the trial judge erred in law in failing to consider and apply the definition of “special or extraordinary expenses” in s. 7(1.1) of the Guidelines. [28] It is useful to reproduce all of s. 7(1) and (1.1) of the Guidelines: 7.(1) In child support order the court may, on either spouse's request, 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 spouses and those of the child and to the family's spending pattern prior to the separation: (a) child care expenses incurred as result of the custodial parent's employment, illness, disability or education or training for employment; (b) that portion of the medical and dental insurance premiums attributable to the child; (c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs; (e) expenses for post-secondary education; and (f) extraordinary expenses for extracurricular activities. (1.1) For the purposes of paragraphs (1)(d) and (f), the term "extraordinary expenses" means (a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account (i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (v) any other similar factor that the court considers relevant. [29] Subsection 7(1.1) was added by amendment to the Guidelines in May, 2006. It followed some dispute in the case law as to whether and to what extent the cost of children’s extracurricular activities should generally be seen as covered in the table amount the payor parent is required to pay by way of child support, or, alternatively, as s. responsibility, like medical expenses and day care expenses, over and above payment of the table amount. This Court had taken position in that debate in Ryba v. Schoenroth (1999), 1999 CanLII 12258 (SK CA), 180 Sask. R. 121 (C.A.), where the Court overruled an order that the payor father pay $230 per month in respect of extraordinary expenses for extracurricular activities of two children in addition to the table amount of $1,318. The Court held that the chambers judge erred, on variation application sparked by the coming into effect of the Guidelines, in failing to address the question of whether the expenses were extraordinary within the meaning of s. 7(1)(f), or, whether, given the standard of living that these children were accustomed to, and given their parents’ income, they were ordinary expenses and thus included in the table amount fixed by s. 3(1)(a) of the Guidelines. Sherstobitoff J.A. concluded: [7] The expenses in question related to activities such as swimming, hockey, soccer, gymnastics, snowboarding and music. Absent any evidence to the contrary, it seems to us that the activities were ordinary activities and the expenses were of an ordinary rather than an extraordinary nature, given the income of these children’s parents. Accordingly, the judge erred in requiring the appellant to pay portion of them under s. 7(1)(f) in addition to the table amount fixed under s. 3(1)(a). [30] In my view, the 2006 amendment effectively adopted this Court’s view of the matter. It is my view that the instant case falls squarely within the ratio of Ryba. [31] In this case, in respect of extracurricular activities, the respondent had sworn in her affidavit that Ashley participated in Tae Kwon Do, outdoor soccer, piano lessons and swimming lessons. Mitchell was said to be involved in outdoor soccer, swimming lessons, piano lessons, and indoor soccer. It was also said that he is very athletic and wishes to pursue other athletic activities. Makayla was said to be very involved in soccer, playing it all year round, as well as swimming and music lessons. She was said to be very active six year old. While her affidavit sworn in support of the application did not mention the costs of these activities, in her sworn financial statement the respondent included an expense item of $5000, without itemizing this figure, but indicating that it covered “lessons, clubs, sports, bicycles.” She did not itemized such expenses in Part of her financial statement, designed to itemize “special or extraordinary” expenses, including extracurricular activities. However, she attached receipts for the children’s swimming lessons ($48.75 each), soccer ($90 in March, 2007 for two children, $180 in March, 2008, for soccer for all three children, plus another activity for Mitchell), $2,289 for total annual cost for music lessons for three children. There was no evidence of the cost for Tae Kwon Do for Ashley. Using only the 2008 costs for soccer (the higher of the two years for which receipts were provided), the itemized activities totaled an annual cost of $2,615.25 for all the children’s extracurricular activities mentioned by the respondent in her affidavit with the exception of Tae Kwon Do. [32] Clearly, by far the most significant (indeed, the only significant) of these costs is the cost of the music lessons. Yet, in his judgment, the chambers judge referred only on the costs of Ashley’s Tae Kwon Do (for which there was no evidence) and soccer ($55 annually); Mitchell’s soccer ($80 annually) and Makayla’s soccer ($45 annually) and voice lessons ($763 annually). There was no finding that these expenses exceeded what the respondent could reasonably cover taking into account her income ($53,744.68, figure that does not include annual after tax child support of $30,384 or the appellant’s contribution to health care and day care costs), nor, in my view, would such finding be reasonable. [33] The respondent argued that the chambers judge ought to be considered to have taken into account the total costs of all the extracurricular activities ($2,615.25), and to have concluded that roughly half of this was “extraordinary” in the statutory sense, and, therefore, in effect, ordered that the respondent pay proportion of half the children’s activities. There are several problems with this interpretation of the judgment. [34] First, it is impossible, without some evidence, explanation or explicit finding, to understand why even the total of all the children’s extracurricular activities ($2,615.25, on the evidence) would be considered “extraordinary” in the statutory sense, given the level of child support ordered and the respondent’s annual income. There was simply no evidence to support such conclusion. Second, the order did not, in fact, come close to ordering that the appellant pay proportion of half the activities, since it excluded the cost of music lessons for the two older children. In addition, it included the cost of Tae Kwon Do for which there was no evidence at all. In short, such an interpretation lacks any rational basis. Third, it is clear that, up until the argument on the appeal, the parties themselves had interpreted the order more generally, as an order that the appellant pay proportion of all the children’s extra-curricular activities. This interpretation certainly makes more sense, for the alternative would require variation in the order, or new agreement, every time the children changed or added activities. It is unlikely that the chambers judge would have confined his order so specifically, absent, of course, an agreement of the parties, or reasonable finding that specific activity constituted an extraordinary expense. In other words, while it is not uncommon for chambers judge to order proportionate sharing of the specific costs of an unusually expensive activity (junior level hockey or competitive dance or music activity for example) for gifted or special needs child of parents of limited means, to specify the proportional sharing of annual soccer fees, where the annual cost is insignificant, or Tae Kwon Do, where it is unknown, does not appear to have any rational basis on the facts of this case, and, more importantly, leaves the parties with no rational basis on which to address the cost of future activities. [35] It is my view that the chambers judge erred in failing to consider the definition of extraordinary expenses in s. 7(1.1), or this Court’s decision in Ryba v. Schoenroth, and acted without any evidence that the expenses in question constituted extraordinary expenses within the meaning of the Guidelines. [36] Accordingly, would allow the appeal and set aside the order of the chambers judge that the appellant pay proportion of the children’s extracurricular activities. The appellant should have the costs of the appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 21st day of July, A.D. 2008. “Smith J.A.” [1] SOR/97-175. [2] 1999 CanLII 691 (SCC), [1999] S.C.R. 518. [3] 2001 SKCA 17 (CanLII), 203 Sask. R. 90. [4] Supra, note 1, s. 7(1.1)(b)(v).
This appeal was brought on a narrow ground from a judgment in the Court of Queen's Bench granting variation of a child support order pursuant to s. 17(1) of the Divorce Act. The appeal challenged the chambers judge's interpretation and application of s. 7(1.1) of the Federal Child Support Guidelines, which defines the term 'extraordinary expenses.' The appellant argued that the chambers judge erred in ordering the appellant to contribute proportionately to the costs associated with the children's extracurricular activities without finding that these were 'extraordinary expenses' within the meaning of the Guidelines. The appellant argued these expenses were ordinary and not extraordinary within the meaning of s. 7(1)(d) and (f) and s. 7(1.1) of the Guidelines. It was the appellant's position that these expenses were covered by the basic child support order which the respondent received tax free, in addition to the appellant's responsibility for 73% of the children's health care and day care expenses. HELD: Appeal dismissed with costs to the respondent. Per Hunter J.A. (Gerwing J.A. concurring): All the information needed to determine the s. 7(1)(f) expenses eligible for proportionate sharing was before the Chambers judge: he knew the total income of the recipient spouse; he knew the previous extracurricular activities and the 11 current extracurricular activities that the children participated in, along with the estimated annual cost. Updated financial statements were filed by both the appellant and respondent. The Chambers judge exercised his discretion and granted an order requiring the appellant to pay his proportionate share (73%) of the extracurricular activities he listed, which is approximately one-half of the children's extracurricular activities. Accordingly, he did not make a palpable and overriding error, nor did he err in law, and his conclusion is supported by the evidence before him on this application. There is no basis to interfere with the decision of the Chambers judge. Per Smith J.A. (in dissent): Significant deference must be given by this Court to the chambers judge in relation to child support orders. This is particularly so to the extent that such orders involve the exercise of discretion. In this case the trial judge erred in law in failing to consider and apply the definition of 'special or extraordinary expenses' in s. 7(1.1) of the Guidelines. First, it is impossible without some evidence, explanation or explicit finding, to understand why even the total of all the children's extracurricular activities would be considered 'extraordinary' in the statutory sense, given the level of child support ordered and the respondent's annual income. There was simply no evidence to support such conclusion. Second, the order did not, in fact, come close to ordering that the appellant pay proportion of half the activities, since it excluded the cost of music lessons for the two older children. In addition, it included the cost of Tae Kwon Do for which there was no evidence at all. In short, such an interpretation lacks any rational basis. Third, it is clear that, up until the argument on the appeal, the parties themselves had interpreted the order more generally, as an order that the appellant pay proportion of all the children's extra-curricular activities. This interpretation certainly makes more sense, for the alternative would require variation in the order, or new agreement, every time the children changed or added activities. It is unlikely that the chambers judge would have confined his order so specifically, absent, of course, an agreement of the parties, or reasonable finding that specific activity constituted an extraordinary expense. The chambers judge erred in failing to consider the definition of extraordinary expenses in s. 7(1.1), or this Court's decision in Ryba v. Schoenroth, and acted without any evidence that the expenses in question constituted extraordinary expenses within the meaning of the Guidelines. Accordingly, the appeal is allowed and the order of the chambers judge that the appellant pay proportion of the children's extracurricular activities is set aside. The appellant should have the costs of the appeal.