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Difference between revisions of "Exceptions to the Child Support Guidelines"
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Exceptions to the Child Support Guidelines (view source)
Revision as of 05:13, 1 December 2016
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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. | 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). | 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)). | ||
The court will then look at the increased costs associated with a shared parenting arrangement (S.9 (b). | 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, [http://canlii.ca/t/1lxpf ''Contino v. Leonelli-Contino''], 2005 SCC 63, the Supreme Court of Canada said this with respect to S. 9 (b): | In the leading case on S.9, [http://canlii.ca/t/1lxpf ''Contino v. Leonelli-Contino''], 2005 SCC 63, the Supreme Court of Canada said this with respect to S. 9 (b): | ||
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[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. | [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. | 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. | Increased costs would normally result from duplication resulting from the fact that the child is effectively being given two homes. | ||
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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. | 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. | 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 [http://canlii.ca/t/gsp1w ''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> | ||
