Section 9 of the Child Support Guidelines *states the following:
9. Where a parent or 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 order for the support of a child must be determined by taking into account,
(a) the amounts set out in the applicable tables for each of the parents or spouses;
(b) the increased costs of shared custody arrangements; and
(c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.
This provision has lead to a mini-industry through which individuals comes up with various methods of calculation to reach the 40% threshold, hoping that they will be relieved from paying child support.
Alas, even if the 40% threshold is reached, it doesn’t necessarily mean that the support amount will be reduced. As the primary residential parent’s expense (e.g. housing costs) are more or less fixed, the increased time spent with the other parent doesn’t lead to reduction of costs. Rather, the overall parenting costs may nonetheless increase as both parents have to incur substantial expenses on housing, clothing, food, and entertainment.
Therefore, the court will have to go beyond the mathematical approach and consider all circumstances, following steps such as these:^
- Start out with the simple set-off amount under the Guidelines.
- Inquire whether shared custody results in an overall increase in costs and the portion shared by each parent.
- Take into account the resources and needs of the parents and children and consider the ability to bear the increased costs of shared custody.
- Investigate whether the standard of living for the children in each household is comparable.
If there’s a great income disparity between the spouses – for example, one spouse is a stay-at-home parent, while the other is a highly skilled professional – the high income earner will often end up paying the full table amount or very close to it.
Finally, the potential reduction in support payable applies to the prescribed table amount only. The extraordinary expenses that often constitute the majority of the support payable, are generally not affected.
Hence, it’s wise to conduct a comprehensive analysis before bringing a motion under s.9. It may not be worth it.
* O. Reg. 391/97
^ Contino v. Leonelli-Contino, [2005] S.C.C. 63, for applications of the rule, see e.g. Daulby v. Daulby, [2007] CanLII 52431 (ON S.C.)
