Section 9 of the Federal Child Support Guidelines – Shared Custody

This section addresses the situation when 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”.

Once it is determined that a parent cares for a child at least 40% of the time, the amount of child support is then determined taking into account the following:

a. the amount as set out in the table for each spouse;

b. the increased cost of the shared custody arrangements; and,

c. the “conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought”.

Therefore, there is a two part test, the first part is to see if the 40% threshold has been passed.    Although there is no definitive test to determine this threshold, the courts have considered the following: “whether physical custody of the child is truly shared”, “time spent sleeping, in daycare or school is not included in the time”, “overnights and weekends should be considered”, the court should “not put too much emphasis on the summer months”, a party cannot “insist on keeping the child for 40% of the time in order to reach the threshold”, and a “custodial parent should not be able to thwart the access’s parent ability to reach the 40% threshold”.

Once this is determined, the second part is then for the court to determine whether or exercise its discretion and depart from the guideline amount once it considers the factors listed above and the budget of the child.   The Supreme Court of Canada in Contino v. Leonelli-Contino held that the steps to take in determining the quantum of support in a shared custody arrangement is as follows:

“1. a determination of the parties incomes;

2. a determination of each party’s monthly expenditures attributable to the child even if such budgets are not the same for both parents and taking into account the fact that there is a large amount of duplication with regards to fixed costs.  Trial courts are to determine the appropriateness of certain line budget items within their discretion;

3. determination of a ration of income between the parties;

4.consideration of the net worth of the parties and their general ability to absorb increased costs;

5.consideration of any variation of the standard of living enjoyed by the child if the case at bar is a variation of child support, particularly if certain financial decisions were based on previous facts (ie. the purchase of a new home was based on the receipt of a Table amount of support).” (pg 217 – Ontario Family Law Practrice, 2009)

Occasionally, there is conflict between parents in reaching the 40% threshold.  One parent may deny or frustrate the other parent’s time with a child.  This is not acceptable and the court understand the motivation of both parties.  However, even when a party does reach the 40% threshold, it does not automatically mean a reduction in support.  This is a difficult determination that requires the assistance of an experienced Toronto family lawyer.  Our divorce lawyers would be pleased to assist you in determining the quantum of support in a shared custody situation.