CHILD SUPPORT IN SHARED CUSTODY REGIME
The Supreme Court of Canada recently (November 10, 2005) pronounced a decision in this area in case known as Contino v. Contino. It provided some direction as to how courts should handle child support in situations where the parents have children that are at least with each parent 40% of the time. However, what it definitely confirmed is that these cases are difficult and will be decided on a case-by-case basis.
Briefly, the facts in Contino were that the parties had one child that at the time of separation was primarily in his mothers care and the father was paying child support pursuant to the Federal Child Support Guidelines. The custody arrangement evolved over time to the point where the child was in the care of each parent for 50% of the time. As a result, the father brought an application to vary the amount of child support he was paying, which is provided for in s. 9 of the Federal Child Support Guidelines. The mothers income was approximately $68,000.00 and the fathers $87,000.00. The mother and father respectively stated that they spent approximately $1,916.00 and $1,814.00 on the child while he was in their care.
The Supreme Court of Canada indicated that to determine the appropriate level of child support in this situation, the reviewing court should embark upon a three-step process under the provisions of s. 9 of the Guidelines. In the first step of the review, the court shall take into account the financial situations of both parents. The court will look at first what the set off amount between the two spouses is, assuming each had to pay the other based upon their incomes (In Contino, this would result in the father paying to the mother for base child support the sum of $150.00, calculated by taking what the father would pay for child support under the guidelines less what the mother would pay under the guidelines: $714.00 – 564.00). However, the court may still modify this set off amount after considering the financial situations of the parents, where one parent’s standard of living is significantly varied as a result of the shared custody regime and the set off amount.
The second step recognizes that the total cost of raising children in a shared custody regime may be greater than in sole custody situations (eg. Each parent requires one of everything for the child in each residence). In this step the court will look at the actual expenditures of each parent in regards to raising the child. If there has been an increase in costs, the court will likely apportion these expenses in accordance with their incomes. In Contino, this resulted in the father paying more than the set off amount due to his higher income (56% of the total income between the parties). Thus he should pay 56% of the total child costs. As he is already paying $1,916.00 of these total costs he should pay to the wife the difference between what he is paying and the total or in that case a further $257.00.
The third step leaves the court with wide discretion to adjust child support further by looking at the resources available to each parent to pay child support. The court will look at the standard of living of the child in each home and the ability of the parents to absorb costs to maintain an appropriate standard of living. In Contino, the court considered these factors and increased support further. In the end, the father was ordered to pay $500.00 per month. Previous to bringing the application he had been paying $563.00.
It is important to note that, as pointed out at the outset of this article, each case will have to be determined on its own set of facts. Thus, if you are in this type of a situation, it is important for you to carefully consider your situation with a lawyer prior to bringing an application.
By Jim Glass
This document is intended to be used for information purposes only.
Due to the ever changing nature of law, you should consult with one of our lawyers if you have specific legal questions.
BARRISTERS, SOLICITORS, NOTARIES, TRADE MARK AGENTS
5233 - 49th AVENUE RED DEER, ALBERTA CANADA T4N 6G5
OFFICE: (403) 343-0812 FAX: (403) 340-3545