• Charles Baker

When Does a Shared Parenting Arrangement Lead to a s 9 Analysis under the Child Support Guidelines?

A shared parenting arrangement may trigger an analysis under section 9 of the Child Support Guidelines. In this event, the parents will not only need to determine if a departure from the set-off table amount is appropriate, but they may also need to consider how they count the time the child is with each of them.

Section 9 of the Child Support Guidelines reads as follows:

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 amounts set out in the applicable tables for each of the spouses; b) the increased costs of shared custody arrangements; c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

The starting point, then, is that a parent exercises 40% or more time with the child before even embarking on an analysis of what the appropriate amount of child support should be under the three considerations referred to in section 9.

Unfortunately, the case law is not uniform about even how to calculate whether the child is with a parent for at least 40% of the time. For example, counting overnights could lead to a different percentage than counting minutes or hours, and different methods of counting can determine whether the 40% threshold has been met. The best guide to determine the 40% is to focus on the amount of time where true parental responsibility is exercised.

Once the 40% threshold has been met, it must then be determined whether there should be a departure from the table amounts set out in the Guidelines. Once again, the case law is not uniform about how to interpret and apply this section. The leading case is the Supreme Court of Canada's decision in Contino v. Leonelli-Contino. This case has not been well received by lawyers, judges and academics who have complained about the awkwardness of the language and vagueness of the decision.

Under subsection a), the Court attempted to clarify that a straight set off amount should apply, but it then attempted to clarify subsections b) and c) but then failed to provide the necessary clarity. Instead, the Court stated that subsection b) requires an examination of the childcare expenses of each parent and then an apportioning of those expenses between the parents by their incomes. It then and went on to section subsection c) and said that this required an examination of the resources and needs of both parents and the child. On its face, this might appear to be clear, but as always the answer lies in the details and the appropriate weight to be applied to each subsection. This has neither been clear nor uniform. As such, litigants, lawyers and even judges have had difficulty with these two subsections. In some cases, neither subsection has been applied and in others, they have been combined. Even further, in other cases, they have been applied individually but not equally, and with little analysis.

The Supreme Court also wrote about the importance of parents leading evidence regarding subsections b) and c) to prove the increased costs of a shared custodial arrangement and the conditions, means, needs and other circumstances of the parents and the child. Leading this evidence is easier said than done — and it can be expensive. In many cases, it is not even worth it because, in the end, the ultimate determination is often close to what would have been the straight set-off amount.

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