The Federal Child Support Guidelines were enacted in 1997 in an attempt to simplify the determination of child maintenance obligations.
If one parent primarily parents the children the guidelines can be applied by looking up the required amount based on the other parent’s gross annual income (usually their line 150 income on their tax return).
If however the parents share the children and both parents have the children in their care at least 40% of the time a more complicated process needs to be followed.
Section 9 of the Federal Child Support Guidelines states the following with regard to shared custody:
“Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent 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 amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.”
The Supreme Court of Canada in a decision Contino v. Leonelli-Contino [2005] S.C.J. No. 65 ruled that the following process needs to be followed in order to determine the amount of child maintenance:
- Determine if the 40% threshold has been passed (this can be a challenge depending whether you count hours, days and/or overnights);
- Determine the set off amount of child maintenance by finding the guideline amount based on each parent’s income;
- Create a children’s budget to establish the increased costs of shared custody and see if the set off amount realistically addresses the children’s expenses. Also determine if the set off amount shares the financial burden equitably between the parents given which parent pays which of the children’s expenses and determine if there is any duplication of expenses.
As you can imagine this exercise is very complicated and subjective and can lead to ongoing disagreements and even litigation over the appropriate amount of child maintenance in a shared parenting situation.
Deborah A. Todd
