Avoiding Shared Parenting Set Off Child Support Child support mistakes is simple – right? As we have repeatedly stated in previous articles, child support is the right of the child to receive, and the duty of each parent to pay. The federal and provincial Child Support Guidelines set out two (2) different types of child support: Section 3 Base Child Support to basically cover food, clothing and shelter, and; Section 7 Extraordinary Expenses to cover special expenses such as child care, school, medical, educational and extracurricular activities. The amount payable by each parent (as set out in the Guideline tables) depends on their total income and the number of children to support. Simple, right? Well, not really and even more so when parents share children nearly equally. We see huge errors made in cases of high net worth clients and where spouses sharing children have disparate incomes. Contact us early on to potentially save thousands.
Warning: Never assume the set off formula is fair without talking to a top family lawyer first.
What is Shared Parenting Set Off Child Support?
Senior associate Peter Graburn explains that the amount of child support payable by each parent also depends on the post-separation parenting arrangement of the children. Shared Parenting Set Off Child Support issues arise if one parent has Primary Care of the children, that parent does not pay base (Section 3) child support to the other parent (but still shares the Section 7 Extraordinary Expenses). But what if the separated parents have a “Shared Parenting” arrangement of the children (at least 40% of the parenting time responsibilities)? Do they pay no base support to each other? Do they set-off child support payments (based on the Guidelines tables)? Do they do something else (ie. an adjustment of the set-off amount to take into account the actual situation of the parents and child)? Many parents (and even some practicing lawyers and Courts) simply use a straight set-off of the table amounts of child support in a shared parenting arrangement.
Guidelines – Section 9 Shared Parenting Rule
However, Section 9 of the Guidelines sets out a mandatory (“must be determined”) regime that permits Courts to deviate from the strict Guideline tables in a Shared Parenting arrangement, stating:
(9) Where a parent exercises a right of parenting time, or a right of access to, or exercises physical care and control of a child for not less than 40% of the time over the course of a year, the amount of a child support order must be determined by taking into account
(a) the amounts set out in the applicable tables for each of the parents,
(b) the increased costs of shared parenting arrangements, and
(c) the condition, means, needs and other circumstances of each parent and of any child for whom support is sought [emphasis added].
Contino Analysis- Shared Parenting Set Off Child Support
In 2005, in the case of Contino v. Leonelli-Contino (2005 SCC 63), the Supreme Court of Canada addressed the application of Section 9 of the Guidelines, holding that the actual process for determining the appropriate amount of child support in a Shared Parenting arrangement (in what has come to be known as a “Contino Analysis”), in order to achieve some degree of “flexibility and fairness” in sharing the cost (and responsibility) of raising children (at para. 39), should actually involve a number of considerations, including:
- a determination of the parties’ incomes;
- a determination of each party’s monthly expenditures attributable to the child ie. a child’s budget (and a determination of the appropriateness of certain budget line items within their discretion);
- a consideration of the net worth of the parties and their general ability to absorb increased costs, and;
- a consideration of any variation of the standard of living enjoyed by the child (if the matter involves a variation of child support from an existing Order or agreement of the parties).
Concerns with Contino 1 877 602 9900
More recently, in the 2020 case of MacDonald v. Brodoff (2020 ABCA 246), the Alberta Court of Appeal reinforced the need to address all three (3) mandatory provisions of Section 9 of the Guidelines when undergoing a Contino Analysis for child support. However, the Court also commented on some of the problems this entails, particularly the need for specific evidence regarding the actual child support expenses, and the resulting high legal costs of such an analysis. In regard to the specific evidence needed, the Court of Appeal stated (at para. 16):
The Supreme Court of Canada in Contino underscored the need for a robust financial record, including sufficient evidence to determine Guidelines income and the resultant Table amount of support payable by each parent, financial statements, and detailed budgets delineating child related expenses, including special or extraordinary s 7 expenses. The Supreme Court of Canada implored courts to demand further financial information if it is deficient…”
Similarly, in regard to the legal cost of a full Contino Analysis, the Court of Appeal stated (at para. 59):
This appeal provides this Court with an opportunity to comment on the challenges presented with both Contino and Hunt. In reality, few s 9 cases are litigated. The reason is simple: engaging in a full Contino analysis is prohibitively expensive for most family law litigants because a fulsome analysis depends on a robust evidentiary record… Yet the Supreme Court of Canada in Contino is explicit that courts should not rely on “common sense” assumptions about parental spending in a shared parenting context, but rather, “should demand” the necessary evidence if the record is lacking: paras 57-58.
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So child support is simple – right? Maybe not so much, particularly when it involves Shared Parenting and a Guidelines Section 9 Contino Analysis. In MacDonald, the Alberta Court of Appeal noted not only the “practical challenges to family law litigants and the Courts” created by Contino, but that studies have shown a full Contino – style analysis may actually result in no different child support payable than a straight set-off of Guideline table amounts (para. 17). Perhaps this is why many parents (and even some practicing lawyers and Courts) continue to calculate child support in a Shared Parenting arrangement under the Guideline Section 9(a) “straight set-off” approach.
So why still do a Contino Analysis in determining child support under a Shared Parenting arrangement? In fact, some are calling for it to be discontinued and/or replaced with legislative provisions that reflect the current realities of the majority of Shared Parenting arrangements, particularly regarding Section 7 expenses (See: Canadian Bar Association Letter to Justice Canada, April 22, 2022).
Even the Alberta Court of Appeal in its concluding comments in MacDonald, in questioning the usefulness of a full Contino – style analysis in all but the most unusual circumstances, stated that perhaps all that is necessary to determine whether a simple set-off of child support in a Shared Parenting arrangement was not “fair and appropriate” in the circumstances was to ask (at para.’s 65-66):
• Is there significant income disparity between the parties?
• Is there an obvious difference in living standards between the parties?
• Is one party clearly bearing the majority of the child expenses such as school fees, clothing and extra-curricular activities that fall outside s 7?
The author of the guidelines admits there are serious flaws in the set off formula:
Complicating matters further are the flaws in the federal child support formula underpinning the table amounts, as well as the logic of the straight set-off under s. 9 CSG. Remember that the table formula makes a number of dubious simplifying assumptions, one of which is that the payor of child support and the recipient have the same income: see Formula for the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report (Child Support Team, Research Report, Department of Justice Canada, CSR-1997-1E, December 1997).
You thought child support is simple – right? Call our shared parenting set off child support lawyers across BC and in Calgary now at 1 877 602 9900.