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 01:19, 4 July 2019

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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 section 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 section 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 analysis starts by looking at each parent's income, finding each parent's support obligation amount under the Guidelines (section 9(a)), then ''offsetting'' the two to come out with a figure that one parent (the higher earning one most likely) owes the other. If Byron would pay $940 per month under the Guidelines, and Helen would pay $1,040 per month under the Guidelines, then the ''set-off'' amount is $200.
The analysis starts by determining each parent's income, finding each parent's support obligation amount under the applicable Guidelines tables (section 9(a)), then ''offsetting'' the two numbers to come up with a figure that one parent (the higher earning one most likely) owes the other. If Byron would pay $940 per month under the Guidelines, and Helen would pay $1,040 per month under the Guidelines, then the ''set-off'' amount is $200.


The court will then look at the increased costs associated with a shared parenting arrangement (section 9(b)).   
The court will then look at the increased costs associated with a shared parenting arrangement (section 9(b)).   


In the leading case on section 9, [http://canlii.ca/t/1lxpf ''Contino v. Leonelli-Contino''], 2005 SCC 63, the Supreme Court of Canada said this with respect to section 9(b):
In the leading case on section 9, [http://canlii.ca/t/1lxpf ''Contino v. Leonelli-Contino''], 2005 SCC 63, the Supreme Court of Canada addressed which factors should be examined under section 9(b). A court will examine the budgets and actual child-related expenditures of both parents. It will then determine whether shared custody has resulted in increased costs globally. These increased expenses should then be apportioned between the parents in accordance with their respective incomes.


<blockquote>
Finally, under section 9(c), a court will look at the evidence regarding the "conditions, means, needs, and other circumstances" of each parent and any child.  Under section 9(c), the court has broad discretion to analyze the resources and needs of both parents, and the children. So, for example, one 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.   
[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 section 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 section 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 section 9(b). This does not mean that the payor parent is in effect spending more money on the child than they were 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 (section 9(c).  Under section 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 [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.
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.
:'''Example:'''
: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


==== Income Tax and Child Tax Benefits====
==== Income Tax and Child Tax Benefits====
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