5,483
edits
Difference between revisions of "Exceptions to the Child Support Guidelines"
From Clicklaw Wikibooks
Exceptions to the Child Support Guidelines (view source)
Revision as of 22:24, 30 November 2016
, 22:24, 30 November 2016→Split custody and shared custody
Desy Wahyuni (talk | contribs) |
Desy Wahyuni (talk | contribs) |
||
| Line 40: | Line 40: | ||
==Split custody and shared custody== | ==Split custody and shared custody== | ||
The fundamental purpose of child support is to help cover some of the expenses paid by the parent or guardian who has the children most of the time, on the assumption that the person who has the children most of the time will bear a greater share of the direct and indirect <span class="noglossary">costs</span> associated with raising the children. Where parents have split custody (each parent has the primary residence of one or more children) or shared custody (the parents share the children's time equally or near-equally), these <span class="noglossary">costs</span> are presumed to be shared more equally. As a result, the Guidelines make an exception to the normal rules. | The fundamental purpose of child support is to help cover some of the expenses paid by the parent or guardian who has the children most of the time, on the assumption that the person who has the children most of the time will bear a greater share of the direct and indirect <span class="noglossary">costs</span> associated with raising the children. Where parents have split custody (each parent has the primary residence of one or more children) or shared custody (the parents share the children's time equally or near-equally), these <span class="noglossary">costs</span> are presumed to be shared more equally. As a result, the Guidelines make an exception to the normal rules. | ||
===Split custody=== | |||
Section 8 of the Guidelines applies to split custody situations. S. 8 states that: | |||
<blockquote><tt>8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.</tt></blockquote> | <blockquote><tt>8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.</tt></blockquote> | ||
Where the primary residence of the children is split between the parents or guardians, the amount of the child support payable is the difference between what each parent would have to pay the other for the support of the children in their care. | Where the primary residence of the children is split between the parents or guardians, the amount of the child support payable is the difference between what each parent would have to pay the other for the support of the children in their care. | ||
| Line 54: | Line 52: | ||
<blockquote>Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.</blockquote> | <blockquote>Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.</blockquote> | ||
Paying the difference between the two amounts is called paying | Paying the difference between the two amounts is called paying the ''set-off'' amount of child support. | ||
===Shared custody=== | ===Shared custody=== | ||
In order to fall within this exception to the Guidelines, the payor must have | S.9 of the Guidelines applies to shared custody situations. S.9 states that: | ||
<blockquote><tt>9. Where a 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 child support order must be determined by taking into <span class="noglossary">account</span></tt></blockquote> | |||
<blockquote><blockquote><tt>(a) the amounts set out in the applicable tables for each of the spouses;</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(b) the increased costs of shared custody arrangements; and</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.</tt></blockquote></blockquote> | |||
In order to fall within this exception to the Guidelines, the payor must have the children for 40% or more of the time. The two big issues here are how each party's time with the children is counted, and how the amount of child support payable should be calculated once the 40% threshold is reached. | |||
====Counting time==== | ====Counting time==== | ||
| Line 66: | Line 70: | ||
*If the parents have the children for an exactly equal amount of time, the 40% requirement has been met. | *If the parents have the children for an exactly equal amount of time, the 40% requirement has been met. | ||
*Holiday periods in which the children spend an unusual amount of time with one parent or the other, shouldn't be used to figure out the average amount of time spent with each parent; rather, the court will look at the average amount of time spent in a typical one- or two-week period. | *Holiday periods in which the children spend an unusual amount of time with one parent or the other, shouldn't be used to figure out the average amount of time spent with each parent; rather, the court will look at the average amount of time spent in a typical one- or two-week period. | ||
*The time the children are in school or in daycare will be credited to the parent who has a right | *The time the children are in school or in daycare will be credited to the parent who has a right to parenting time of the children during that time, on the principle that this person is the parent who would have to care for children on a professional development day or attend the school or daycare in the event of an illness or an emergency. | ||
*If a parent's time with the children is specified as concluding at the start or end of the school day, that's when that parent's time concludes, and credit will be divided accordingly. | *If a parent's time with the children is specified in an agreement or a court order as concluding at the start or end of the school day, that's when that parent's time concludes, and the other parent’s time starts, and credit will be divided accordingly. | ||
Of course, as in most issues involving children, each case will be decided on its own unique circumstances. | In the case of [http://canlii.ca/t/g6rr2 C.M.B. v. B.D.G.] 2014 BCSC 780 the court recognized that there is no universal formula for counting time that children spend with each parent, when the court is required to determine whether parents share parenting for the purpose of child support. Of course, as in most issues involving children, each case will be decided on its own unique circumstances. | ||
====Calculating support==== | ====Calculating support==== | ||
Once the 40% issue has been dealt with, the court must then decide how much child support ought to be paid, | Once the 40% threshold issue has been dealt with, the court must then decide how much child support ought to be paid, based on S.9 of the Guidelines. The intention is to reduce any difference in the living standards between the two homes in which the children live after their parents’ separation. | ||
The starting point of the analysis is to look at the resulting child support amount by offsetting each parent’s obligation under the Guidelines (S. 9(a). | |||
Although the court has developed a number of different formulas to calculate the amount of child support payable | The court will then look at the increased costs associated with a shared parenting arrangement (S.9 (b). | ||
In the leading case on S.9, Contino v. Leonelli-Contino, 2005 SCC 63, the Supreme Court of Canada said this with respect to S. 9 (b): | |||
<blockquote> | |||
[52] What should the courts examine under this heading? Section 9(b) does not refer merely to the expenses assumed by the payor parent as a result of the increase in access time from less than 40 percent to more than 40 percent, as argued in this Court. This cannot be for at least two reasons. | |||
First, it would be irreconcilable with the fact that some applications under s. 9 are not meant to obtain a variation of a support order, but constitute a first order (see Payne, at p. 261). Second, as mentioned earlier, the Table amounts in the Guidelines do not assume that the payor parent pays for the | |||
housing, food, or any other expense for the child. The Tables are based on the amount needed to provide a reasonable standard of living for a single custodial parent (see Formula for the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report, at p. 2). This Court cannot be blind to this reality and must simply conclude that s. 9(b) recognizes that the total cost of raising children in shared custody situations may be greater than in situations where there is sole custody: Slade v. Slade, at para. 17; see also Colman, at pp. 71-74; Wensley, at pp. 83-85. Consequently, all of the payor parent’s costs should be considered under s. 9(b). This does not mean that the payor parent is in effect spending more money on the child than he or she was before shared custody was accomplished. As I discuss later in these reasons, it means that the court will generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally. | |||
Increased costs would normally result from duplication resulting from the fact that the child is effectively being given two homes. | |||
</blockquote> | |||
Finally, the court will look at the evidence regarding the conditions, means, needs and other circumstances of each parent and of the children (S. 9 (c)). Under S.9 (c), the court has broad discretion to analyze the resources and needs of both parents, and the children. So, for example, a parent’s new partner’s income may be taken into account as part of an overall analysis of that parent’s household income, whether that parent is the payor or the recipient of child support. | |||
Although the court has developed a number of different formulas to calculate the amount of child support payable in shared parenting situations, in general the set-off calculation will be used. This approach was recently confirmed by the British Columbia Court of Appeal in the case of B.P.E. v. A.E. 2016 BCCA 335, which gave deference to the set-off approach in a shared custody situation. | |||
<blockquote>Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.</blockquote> | <blockquote>Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.</blockquote> | ||
==Independent minor children== | ==Independent minor children== | ||
