Child Support Obligations in Shared Parenting Regime -- Family Law Information

SHARED PARENTING AND CHILD SUPPORT OBLIGATIONS

by Darryl Aarbo

A situation that comes up quite regularly and is misunderstood by many clients is the child support obligations where there is shared parenting regime in effect.  Shared parenting occurs when each parent’s care of the children falls within the range of between 60% and 40%.  In other words, each parent has the children for at least 40% of the time.

The analysis of when the parents are in a shared parenting arrangement, assuming they do not agree, is complicated in itself.  Do you factor in school time?  Sleeping time? What time do you factor in?  That analysis can be difficult unless the parties agree.  We will assume for the purpose of this article that the parents have agreed that they are in a shared parenting arrangement or the Court has made that finding.

The misunderstanding of clients on the child support arrangements in a shared parenting regime has reached the proportion of urban myth.  What I mean by that is clients assume that once they are in a shared parenting arrangement then there will be an automatic set off of child support obligations.  For example, parents will look at what their child support obligations would be to the other parent and then figure out what the other parent would pay them if the children were with that person full time and set off the two amounts.  For example, they figure out that if the kids were living with Mom full time then Dad would have to pay her $1,000.00 per month.  Then they figure out that Mom would have to pay Dad $500.00 per month if the kids were living with Dad full time.  They take the two amounts and set them off and determine that Dad should pay Mom $500.00 for the support of the children in the shared parenting arrangement.

Some clients believe this to be the case no matter what and want it to be the case so badly that they have a hard time accepting that this is not necessarily the situation.  The decision of Contino v. Contino 2005 SCC 63 clarified the law in this regard.  Although the decision is more than five years old and it is from the Supreme Court of Canada, many people understand that the set off is the only way to deal with child support.

Section 9 of the Federal Child Support Guidelines states as follows:

            “9        Where a spouse exercises a right of access to, or has physical custody of

                        a child for not less than 40% of the time over the course of a year, the amount

                        of the child support Order must be determined by taking into account:

(a)   the amount set out in the applicable tables for each of the spouses;

(b)   the increase cost of shared parenting arrangements; and

(c)    the conditions, means, needs and other circumstances of each

spouse and of any child for whom support is sought.

In the Supreme Court of Canada’s analysis of this section it stated that section 9 does not include a conclusive formula to determine how the table amounts are to be considered or accounted for.  It stated that a simple set off amount is only a starting point for the section 9 analysis, that it must be followed by an examination of the continuing ability of the recipient parent to meet the needs of the child, especially in light of the fact that many costs are fixed.

Section 9(c) gives the Court a great deal of discretion to modify the set off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to the other.  It further stated that the Court should, in so far as possible, ensure that the child of the parties enjoys a standard of living that is reasonably comparable to the standard of living before the divorce and does not vary markedly in material respects moving from one household to the other.  The method for achieving this outcome should be evidence based.

What the Court is stating is that there is not a simple formula.  Setting off each parent’s child support obligations is only the first step.  After that the Court can tinker with the child support to meet the objectives set out by the Court and the Federal Child Support Guidelines.  In the experience of the writer, it is common for the Courts to engage in this analysis.  Nevertheless, the myth exists amongst not only clients but some lawyers that all one does is do a set off.

What the Court has to do is engage in an analysis of the standard of living of each household.  If one household is heavily burdened by debt or the affect of the set off would have a negative impact on the children, then the Court can and will vary the set off amount to minimize any negative impacts on the children.  In fact, the Court can have one parent pay the full amount of his or her child support without any set off at all. 

From a practitioner point of view, it is important to note the Court’s comment that it is evidence based.  The parties must lead evidence for the Court to do the analysis.  In other words, one cannot simply submit to the Judge the parties’ income and the set off amounts using a simple formula or table provided by one of the child support software programs.  The parties must lead evidence of each party’s standard of living, expenses, revenue, income, debt and assets.  Basically, comprehensive budgets and sworn statements of assets, debts and income must be submitted.  Income must be broken down and not simply providing the line 150 amount for the Court.

Darryl Aarbo, Barrister and Solicitor

Darryl's bio: http://www.courtneyaarbo.ca/aarbo.php

Darryl's email: darrylaarbo@courtneyaarbo.ca

The information contained in this blog is not legal advice.  It should not be construed as legal advice and should not be relied upon as such.  If you require legal advice, please contact a lawyer.