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In a child support judgment rendered on November 10, 2005 in Contino v. Leonelli-Contino, the Supreme Court of Canada has addressed the calculation of child support under the Child Support Guidelines in shared parenting situations. This decision is now the leading child support case in Canada and for BC child support in shared custody cases and will affect British Columbia child support cases for years to come.  Earlier British Columbia Court of appeal child support and shared custody cases notably Green applied a similar approach.

Under section 9 of the Child Support Guidelines, the threshold test of having access to, or physical custody of, a child for not less than 40% of the time must be met.  Once the 40% threshold is met, the Court must determine the appropriate amount of the child support award.  Section 9 provides that the amount of child support must be determined by taking into account

(a)                the amounts set out in the applicable tables for each of the spouses;

(b)               the increased costs of shared custody arrangements; and

(c)                the condition, means, needs and other circumstances of each spouse and of any child for whom support is sought.

Prior to the Contino decision, the courts had applied several different approaches to determining the amount of support, including setting off the Guideline table amounts of support, ordering the payor to pay 60% of the Guideline table amount of support, and multiplying the Guideline table amount by the percentage of time with each parent, and then setting off the two amounts. There have also been cases where no child support was awarded on the basis that the higher income parent shouldered the majority of the children’s expenses. The British Columbia Court of Appeal in the 2000 decision of Green v. Green held that there is no one formula under section 9 that should be regarded as definitive. 

In Contino, the Supreme Court of Canada attempts to set out precise Guidelines in calculating child support under section 9.

Contino is an appeal from a decision of the Ontario Court of Appeal which reduced the amount of child support payable by the respondent father because the child of the marriage was then in his physical custody 50% of the time. The Ontario Court of Appeal had reduced the monthly amount using a set off‚Äù method as a starting point and adjusting the set off amount by applying a multiplier of 67.6 per cent to account for the mother’s fixed costs of accommodation, and by taking the actual situation of the parents and the child into account.

The Supreme Court of Canada considers each of the section 9 factors in turn:

Under section 9(a), the simple‚Äù set off is viewed as the starting point, although the Court maintains the discretion to modify set off amounts to avoid great disparities between households. As far as possible, the child should not suffer a noticeable decline in his or her standard of living. 

Section 9(b) requires an examination of the increased costs of shared custody arrangements. It is noted by the Court that the Tables are based on the amount needed to provide a reasonable standard of living for a single custodial parent, and they do not assume that the payor‚Äù pays for the housing, food or any other expense for the child. In shared custody situations, the children are effectively being given two homes.  Thus, to determine the additional costs incurred as a result of the change in custodial arrangements, the Court will need to examine budgets and actual child care expenses and apportion these between the parents in accordance with their respective incomes. 

The analysis of the condition, means, needs and other circumstances‚Äù of the spouses and children under section 9 (c) should focus on the particular facts of each case, and courts should demand information from the parties when it is deficient.  The Court indicates that it is not possible to simply assume the amount of increased costs, and that use of a multiplier in lieu of specific evidence is problematic. Financial statements and/or child expenses budgets are necessary for a proper evaluation of section 9(c).

Applying this analysis to the particular facts in Contino, including an examination of the respective Table amounts of the parties, the total child related expenditures, and the purchase by the mother of a new home in reliance on the higher amount of child support she had at that time received, the appeal was allowed and the father was ordered to pay the original amount of child support which the parties had negotiated in a separation agreement.

It is clear from Contino that, if the 40% threshold is met, there is no presumption in favor of reducing the child support obligation downward from the Guidelines, nor is there a presumption in favour of awarding at least the Guidelines amount.  Thorough childcare expense budgets will be crucial, as the Courts must measure the actual contributions and actual sharing of the child’s real expenses before making any adjustments that take into account increased costs attributable to joint custody, as well as consider any further adjustments needed to ensure that the final outcome is fair. 

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