Nick Davies of our Vancouver office is a senior mediator, arbitrator and family lawyer at Vancouver’s top rated family law firm.
Vancouver Child Support and BC Shared Parenting
The issue often arises as to how child support is calculated when both parents are responsible for parenting children. In some cases a parent will attempt to negotiate for at least 40% of the parenting time in order to avoid paying child support, when in fact the proposed arrangement is not in the best interests of the children. In other cases a parent will attempt to ensure that child support is paid by forcing the other parent to accept less than 40% of the parenting time when equal parenting time would be in the best interests of the children. Worse, the law is not clear on how the 40% is calculated. Parents locked in this battle often assume incorrectly that the 40% threshold is a magic line in the sand.
Vancouver Split Custody Means Child Support Set Off
Section 8 of the Child Support Guidelines deals with “split custody”. Split custody means one child lives with one parent while one child lives with the other parent. In split custody situations, Section 8 requires the parties to calculate what each parent would pay to the other parent and then offset the two amounts to arrive at a net payment.
Vancouver Shared Custody Is Not Automatic Child Support Set Off
Section 9 of the Guidelines deals with “shared custody” situations. Shared custody means the children are with each parent for part of the time. Section 9 says that where a parent exercises “a right of access to, or … physical custody of a child for not less than 40 percent of the time over the course of a year …” child support is calculated taking into account the table amount payable by each of the spouses, the increased cost of shared custody arrangements and the conditions, means, needs and circumstances of each spouse and of any child for whom support is sought.
In shared custody situations where both parents earn income, many people assume that if they can get over the magic 40% line their child support obligation will be reduced because their obligation to pay support will automatically be offset against the other parent’s obligation to pay support. If both parents earn roughly equal incomes many people assume that if they can get over the magic 40% line the child support obligations will cancel each other out. Those assumptions are not correct.
These mistaken assumptions probably arise because many people confuse split custody with shared custody. Section 8 of the Guidelines requires an automatic offset in split custody situations. Section 9 of the Guidelines does not. Section 9 simply refers to the “amount payable by each spouse” along with other factors related to the actual circumstances of the parties.
New Terminology Makes Child Support In Shared Custody and Parenting Situations Confusing
A difficulty arises because orders for parenting arrangements in British Columbia no longer use the same language as the Child Support Guidelines. Section 9 of the Guidelines refers to “physical custody” and “a right of access” because the Divorce Act speaks in terms of custody and access. However, under our new Family Law Act in British Columbia we no longer recognize custody as some sort of legal status. Physical custody is simply a question of fact – who has responsibility for the children at any particular time? Similarly, if the children are primarily resident in one home the Child Support Guideline refer to the other parent as the “access parent” while the Family Law Act refers to that parent as a parent who is entitled to “parenting time”.
In fact some judges depart from the words “custody” and “access” and simply refer to “parenting time”. Arguably the term parenting time better captures the actual test – who is responsible for the children at any particular time? The term “access parent” is useful to distinguish that parent from the parent with whom the children are “primarily resident”.
To consider whether support amounts should be offset in a shared parenting situation, a two-step approach is required:
- Has the 40% threshold been exceeded?
- If the 40% threshold has been exceeded, should an offset apply?
To calculate whether a parent has care and control of a child for at least 40% of the time, the following is our suggested approach:
- Parenting time is not calculated based on what might happen in future;
- Parenting time is calculated based on what the order or agreement says, not what is actually happening;
- Parenting time is calculated in hours, not days;
- The number of hours is calculated on the basis of time the child is in care and control of a parent, not only the amount of time the parent is physically present with the child;
- The hours a child spends sleeping at a primary residence are attributed to that parent;
- If an access parent is actually exercising access and the child is sleeping in the access parent’s home, the sleeping time is attributed to the access parent;
- If the primary residence parent either drops the child at school or picks them up after school, the hours in school are attributed to the primary residence parent;
- If there is a fixed drop off for the access parent to deliver the child to school or daycare and the child returns to their primary residence at the end of the day, the school or daycare time for that day is credited to the residential parent;
- If an access parent both drops a child at school and picks the child up at school at the end of the day, the number of hours in school that day is attributed to the access parent;
Of course, the above are only general rules. Given the myriad of parenting arrangements that can be negotiated between parents or ordered by the Court, the Court will depart from these rules if the resulting calculation would be unfair or would lead to absurd results. For example, in a close case the obligation to pay child support could in theory be determined by where Mother’s Day, Father’s Day, birthdays and Christmas happen to fall in a particular year.
In considering how to apply Section 9 in shared parenting situations, the courts in some provinces place great emphasis on a strict calculation of hours and percentages. The problem with this approach is that a strict calculation places too much emphasis on the parenting schedule and the table amount payable by each parent while ignoring the increased cost of shared custody arrangements and the conditions, means, needs and circumstances of each parent and the children.
What Do BC Courts Do In Deciding Child Support In Shared Custody Cases?
For this reason the courts in British Columbia do not follow the above rules slavishly and will consider the 40% threshold in the overall context. In appropriate circumstances British Columbia courts will consider the other factors. For example the court may consider who pays most of the expenses for the children. In a true shared parenting situation, where the children truly do live with each parent more or less equally, if incomes are equal the expenses paid by each parent should be equal. A British Columbia court may be inclined to ignore the fact that parenting time for the access parent is over the 40% threshold if the other parent is left to provide the primary residence for the children and pay forced to pay for most of the food, clothing, school, dental, health and other expenses for the children.
These issues can be time consuming, expensive and frustrating to deal with in the court system. At MacLean Law Group we are experienced in this complex and evolving area of the law. Our highly skilled mediators welcome the opportunity to assist parents to negotiate a solution which recognizes the interests of the children and both parents, at a fraction of the cost of a lawsuit. Call Nick at our downtown office at 604-602-9000.
