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Restraining Financial Family Violence

Shared custody child support household income cases involve comparing the household incomes of both spouses to decide fair child support. Some Shared Custody Child Support Household Income cases involve equalizing the net disposable income in both homes so one home is not a “have” home and the other a “have not” home in a financial sense.

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But what if one spouse remarries and has a newborn child and their income is zero or what if one spouse doesn’t work at all because their new partner supports them? In the case of a temporary lack of income, a set-off formula would have the employed spouse paying the full amount of guideline child support for at least a short period until the other spouse went back to work.

But what happens if one spouse never returns to work because they have a high-income partner? Can the income of new partners be taken into account? In today’s blog, Maclean Law founder Lorne MacLean, QC explains that the answer can be YES in shared custody child support household income disputes.

In AHB v CLB 2019 BCCA 349 the highest court in BC found that since the finances of the mother’s new spouse may be relevant in a future hearing or trial regarding shared custody child support issues under s. 9(c) of the Child Support Guidelines, it was an error not to order disclosure.

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A husband appealed the dismissal of his application to change child support to reflect a change in circumstances based on him having primary residence despite a shared parenting order where set off child support was used to set the child support payable. The Appeal Court noted that the courts had yet evaluated the parties’ respective child support obligations in light of the full set of considerations contemplated by the Supreme Court of Canada’s judgment in Contino. The husband successfully obtained an order for disclosure of the mother’s new partner’s income as the court ruled it would be relevant to a shared custody child support analysis. Read Lorne MacLean, QC’s blog for our summary of the Contino case and how shared custody impacts child support payments.

So what happened in this new BC Court of Appeal shared custody child support household income case?

[22]         Mr. B. alleges the following errors in the order of Justice Voith:

a)    failing to provide any reasons for judgment;

b)    failing to review the shared custody situation in accordance with Contino v. Leonelli-Contino, 2005 SCC 63, including failing to order the production of income tax returns of Ms. B. and her husband;

c)     failing to order both parties to pay child support;

d)    failing to provide credit to Mr. B. for his full-time care of the child, including being required to pay child support when the child was in his full-time care and not assigning child support to Ms. B. in those months; and

e)    failing to acknowledge the s. 7 expenses paid exclusively by Mr. B.

[35]         The existing child support obligations are based on an assessment of the parties’ income for child support purposes originally made in the trial before Justice Bowden, as varied by this Court in 2013. Mr. B.’s obligation was the result of a simple set-off calculation. He is right to point out that there has not been a full Contino analysis under s.9 of the Child Support Guidelines. Section 9 of the Guidelines provides:

  1. 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.

[36]         It may well be that both parties’ income for child support purposes has changed materially in the last number of years. There has not been an examination of the way in which the conditions, means, needs and other circumstances of each spouse and the child may affect child support obligations in a shared parenting arrangement. This Court has commented on the relevance of “household income” to the s. 9(c) analysis in shared custody cases in B.P.E. v. A.E., 2016 BCCA 335 at para. 44 and following. The effect of that analysis is that the financial circumstances of Ms. B.’s household, including her spouse, might be relevant to a proper calculation of the parties’ respective child support obligations after taking account of each party’s income for child support purposes and after a set-off calculation.

[37]         In these circumstances, financial disclosure by Ms. B.’s spouse may be relevant to certain issues in a future hearing or trial. Accordingly, I think it was an error not to order Ms. B.’s spouse make financial disclosure, at least for equipping a court to determine child support obligations in the context of a Contino analysis. I would make that order.

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