BC and Calgary BC Child Support Shared Parenting Arrangements are now a common issue parents must address as shared child parenting is increasing dramatically in both BC and Alberta.
MacLean Law’s highly rated family lawyers understand that BC and Calgary parents are agreeing to more shared child parenting arrangements than ever before. When parents cannot agree on parenting arrangements judges are now commonly ordering shared equal child parenting arrangements. MacLean Law has offices in Vancouver, Calgary, Surrey, Kelowna, Richmond and Fort St John, BC. We can be reached toll free at 1-877-602-9900.
BC Child Support Shared Parenting Arrangements
The recent Child Support Shared Parenting Arrangements decision of Lozinski v. Lozinski 2017 BCCA 280 permitted consideration of veteran’s pension income as money that could be considered in deciding the means of the father and that allowed for an increase in support above the straight set off formula considering guideline income:
[39] Shared parenting arrangements constitute a complete and separate child support regime under the Guidelines. This regime is governed by s. 9 and the presumptive rule in s. 3 does not apply. As Bastarache J. explained in Contino v. Leonelli-Contino, 2005 SCC 63 at para. 3, this regime is “not designed with the same guiding principles” as the general child support regime. In creating it, Parliament “chose to emphasize the objectives of fairness, flexibility and recognition of the actual conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought, even if to the detriment of predictability, consistency and efficiency to some degree”: Contino at para. 33. The court is to consider the “overall situation of shared custody” with a view to ensuring “a fair level of child support” and “that the economic reality and particular circumstances of each family are properly accounted for”: Contino at para. 27.
[40] Section 9 provides:
9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of 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.
BC Child Support Shared Parenting Arrangements -How The Test Is Applied
[41] In Kerr v. Pickering, 2013 ONSC 317 at para. 32, Chappel J. distilled the principles that govern s. 9, as expressed in Contino:
[32] …
a. … in shared parenting arrangements … the court must determine the quantum of child support in accordance with the three factors listed in section 9.
b. A finding that a shared parenting arrangement exists does not automatically dictate a deviation from the Table amount of child support. …
c. None of the three factors listed in section 9 prevail over the others. In reaching an appropriate child support figure, the court must consider the overall situation of shared custody, the costs to each parent of the arrangement and the overall needs, resources and situation of each parent. …
d. … the purpose of section 9 is to ensure a fair and reasonable amount of child support. … in adopting section 9 of the Guidelines, Parliament made a clear choice to emphasize the need for fairness, flexibility and the actual condition, means, needs and circumstances of each parent and the child, even if this meant sacrificing to some degree the values of predictability, consistency and efficiency.
…
g. … the court has the discretion to modify the simple set-off amount where “considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another, something which Parliament did not intend.” … the court should insofar as possible strive for a result that avoids the child experiencing a noticeable decline in their standard of living as they move between households. [Footnote omitted.]
…
BC Child Support Shared Parenting Arrangements- Conditions, Means, Needs and Other Circumstances
[42] Section 9(c) requires the court to consider the “conditions, means, needs and other circumstances” of each spouse and the children. It vests a broad discretion in the court to consider the resources and needs of both parents and the children in order to recognize and address the financial realities of those families to whom it applies. The court must bear in mind the objectives of the Guidelines, including to ensure a fair standard of support for children and fair contribution from both parents, and, in considering s. 9(c), will be concerned with the standards of living in the two family homes and the ability of each parent to absorb the costs required to maintain the appropriate standard of living in the circumstances: Contino at para. 68.
[43] Accordingly, the phrase “conditions, means, needs and other circumstances of each spouse” in s. 9(c) of the Guidelines is broad and flexible.
[44] As noted, the same phrase is found in s. 15.2(4) of the Divorce Act regarding spousal support. The Supreme Court of Canada has interpreted “means” in the spousal support context expansively to include “all pecuniary resources, capital assets, income from employment or earning capacity, and other sources from which the person receives gains or benefits”: Strang v. Strang, [1992] 2 S.C.R. 112 at 119; Leskun v. Leskun, 2006 SCC 25 at para. 29. In Kerr, the court relied on this interpretation in considering s. 9(c) of the Guidelines:
[33] The Supreme Court of Canada has considered the scope of the terms “condition” and “means” in the context of spousal support cases. It has held that the “condition” of a litigant includes such factors as their age, health, needs, obligations, dependants and their station in life. A litigant’s “means” encompasses all financial resources, capital assets, income from employment and any other source from which the spouse derives gains or benefits. [Footnotes omitted.]
[45] The broad and flexible interpretation of “conditions, means, needs and other circumstances” is consistent with the jurisprudence in this province. For example, in Ortynski v. Ortynski, 2014 BCSC 73 at para. 45, the Court held that s. 9(c) captured wealthy paternal grandparents’ contributions, and in Reber v. Reber, 2002 BCSC 884 at para. 76, child tax benefits and a daycare subsidy were considered on the same basis.
BC Child Support Shared Parenting Arrangements-Analysis
[46] In my view, the judge engaged in the sort of broad and flexible analysis mandated by Parliament in s. 9(c) of the Guidelinesand s. 15.2(4) of the Divorce Act. In doing so, he recognized the compensatory nature of the VA Pension and its intended purpose of improving Mr. Lozinski’s quality of life. He also proceeded on the basis that the VA Pension is not income, citing L.F. and Wells with apparent approval: paras. 72-79. Nevertheless, given the shared parenting context, he was entitled to consider the VA Pension as part of “all financial resources, capital assets, income from employment and any other source from which [Mr. Lozinski] derives gains or benefits”: Kerr at para. 33. As is clear from his testimony, this is the manner in which Mr. Lozinski treats the VA Pension.
