Our top rated* Vancouver family lawyers are often asked how does Vancouver Shared Custody Child Support work? Vancouver Shared Custody Child Support takes into account the incomes of both parties as well as the common sense fact that expenses to raise children in two homes may require increased costs due to duplications of heat, light, transportation, shelter and other costs.
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Vancouver Shared Custody Child Support
A Vancouver Shared Custody Child Support decision released this week by Madam Justice E.A. Arnold-Bailey in TNS v TLG reviewed the principles to be applied to a shared parenting regime when child support is involved and she provides a very helpful synopsis for parties facing similar situations.
The most common approach people used is the set-off formula where the lower income spouse’s guideline support payment assuming the other parent had sole custody is deducted from the higher income spouse’s notional obligation to pay support to the other spouse as if that spouse had sole custody. Basically you subtract the lower guideline amount from the higher guideline amount to obtain a “set-off” payment.
The parties should each prepare a budget for the children that are in a shared parenting time regime meaning both spouses have the children over 40% of the time. Because shared custody and parenting time is skyrocketing as a legitimate regime to promote children’s best interests this new case is very useful.
[295] In shared parenting situations, where each spouse has custody of the child for over 40 per cent of the time over the course of a year, s. 9 of the Guidelines specifies that the child support order 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 conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
[296] First, the Court must determine whether the 40 per cent threshold is met. This must be proven by the parent who invokes s. 9. If the threshold is met, then the Court must proceed to determine the appropriate amount of support after considering the three enumerated factors.
[297] The leading case on the interpretation and application of s. 9 is Contino v. Leonelli-Contino, 2005 SCC 63. A number of important points emerge from this decision, helpfully summarized by Joyce J. in Franke v. Franke, 2008 BCSC 1145 at para. 30, as follows:
• There is no presumption in favour of awarding the amount that would be payable under s. 3 of the Guidelines and no presumption in favour of reducing the amount downward from the Guidelines (para. 31).
• The court should not use a formulaic approach to the application of s. 9 of the Guidelines. The specific language of the section warrants emphasis on flexibility and fairness. The weight of each factor will vary according to the particular facts of each case (para. 39).
• Section 9(a) requires the court to consider the amounts set out in the applicable tables for each of the spouses. A simple set-off approach is a useful starting point, especially in cases where there is limited information and the incomes of the parties are not widely divergent but caution should be exercised against a rigid application of the set-off. The set-off amount must be followed by an examination of the continuing ability of the recipient parent to meet the needs of the child and full consideration must be given to the last two factors (paras. 41, 44, and 49).
• 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. 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. 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. It means that the court will generally have 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. The actual child care expenses are to be apportioned between the parents in accordance with their respective incomes (paras. 52-53).
• Not every dollar spent by a parent in exercising access over the 40 percent threshold results in a dollar saved by the recipient parent. It is possible to presume, in the absence of evidence to the contrary, that the recipient parent’s fixed costs have remained unchanged and that his or her variable costs have been reduced only modestly by the increased access. When no evidence is adduced, the court should recognize the status quo regarding the recipient parent (para. 54).
• In analyzing s. 9(c), the court should keep in mind the objectives of the Guidelines, which require a fair standard of support for the child and fair contributions from both parents. What is of particular concern under s. 9(c) is the standard of living of the child in each household and the ability of each parent to absorb the costs required to maintain the appropriate standard of living in each circumstance (para. 68).
• Some factors to consider under s.9(c) are the actual spending patterns of the parents; the ability of each parent to bear the increased costs of shared custody (includes consideration of assets, liabilities, income levels, and income disparities); and, standard of living for the child in each household. (para. 69).
• Given the broad discretion of the court conferred by s. 9(c), a claim by a parent for special or extraordinary expenses falling within s. 7 of the Guidelines can be examined directly in s. 9 with consideration of all the other factors (para. 71).
[References to Contino.]
[298] The shared parenting regime for the Child clearly places the Child in the care of each parent more than 40 percent of the time. However, I have set out the above law with regard to shared parenting situations and s. 9 of the Guidelines solely for the purpose of pointing out that in the present case neither party has asked the Court to engage in a Contino-type of analysis. Rather, the parties have tacitly accepted that a simple set-off approach is appropriate in the present case. No submissions have been made to the contrary.
Our family lawyers routinely handle Vancouver Shared Custody Child Support cases and can meet with you to help settle these cases promptly. If we cannot negotiate, or mediate your Vancouver Shared Custody Child Support we are skilled in the courtroom.
Contact our founder Lorne N MacLean, QC winning counsel in the leading SCC child custody case of Young v. Young to discuss your options toll free 1-877-602-9900.
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