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Child Support in Shared Parenting Scenarios

THE GUIDELINES AND TABLES

The Federal and Ontario Child Support Guidelines are meant to be simple, easy to work with, and to result in a fair and standard way of ensuring children in similar circumstances are treated in a similar way.
For many parents the calculation is quick and easy. By knowing simply how much money the payor parent makes and how many children are entitled to monthly support, the Guidelines give users a hard and fast number in the form of the Tables (available here).
However, the standard Table amounts may not be appropriate in all circumstances. There are three main situations in which the Table amounts may not be awarded: shared parenting, very high incomes and undue hardship. This post will address shared parenting scenarios, sometimes also referred to as "shared custody" or "joint custody" arrangements.

SHARED PARENTING

Shared parenting is defined as cases in which children are with each parent at least 40% of the time. Section 9 of the Guidelines indicate that in shared parenting scenarios child support must be calculated by taking into account the amount prescribed in the Tables, the increased cost of shared custody arrangements, and the "conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought." (see the full text of section 9 here: http://laws-lois.justice.gc.ca/eng/regulations/sor-97-175/page-4.html). In these shared parenting scenarios, the court has much more discretion when it comes to child support than in cases where there is one primary parent and the other parent who pays support at the Table amount.

THE SET-OFF

Sometimes parties agree to a "set-off" of child support in shared parenting scenarios. For example, if the higher income-earning parent has an income of $85,000, he or she would owe $1,232 per month to support two children. If the lower income-earning earns $50,000 his or her obligation would be $743 per month for the same two children. It is a common arrangement for the higher earner to pay the difference ($489) to the lower earner. This set-off is easily calculated but may not be appropriate for every situation.

A MORE DETAILED ANALYSIS

The leading Supreme Court of Canada case on "section 9" cases is Contino v.Leonelli-Contino, which indicates that once the 40% threshold has been met, the appropriate amount of support is determined based on a budget, with a fair and flexible approach. The set-off is a starting point, but the court is also obligated to consider the increased costs of shared custody (for example, two houses, two sets of clothes, two bedrooms for each child) and the conditions, means, needs and other circumstances of the parties (for example, the resources or income available to each parent, the two household budgets, and the standard of living for the child in each household).If the parents wish to pursue this kind of analysis, it is much more detailed than the calculation of the set-off amount. This complexity may be one of the reasons that set-off arrangements are so frequent. Also, there is the cost of negotiating with your former spouse, or applying to the court for a more detailed analysis either during the initial stages after separation, or in the context of a variation (see our earlier poston variations to support orders here). Cases have been decided awarding child support that is higher or lower than the set-off would be based on various factors, including one parent incurring more than his or her fair share of overall expenses, a wide disparity in the child's standard of living in the two households, or the payor parent having a very high level of income.

WHAT TO DO


If you are wondering about the appropriateness of your child support arrangements, or trying to determine how to calculate your entitlement or obligation, start with the Table amounts in the Guidelines. The vast majority of parents pay child support in accordance with these Tables. If you fall into a category that suggests that this would not be appropriate to your circumstances, you should speak to a lawyer about your position, and get expert advice.

- Jenny

Remember, everyone's situation is unique. The blogs posted on this site are informational. They are not intended to be taken as legal advice for your situation. It is always a good idea to seek professional legal advice before making any decisions related to your particular case.

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