I. Shared Custody: 40 Percent Rule

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 408-417

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Section 9 of the Federal Child Support Guidelines permits a court to deviate from the normal guidelines amount of child support where a parent exercises access to or has physical custody of a child for not less than 40 percent of the time over the course of a year. Shared custody or access for 40 percent of the time over the course of a year is the equivalent of 146 days¹⁴⁷or 3,504 hours¹⁴⁸of the year. Judicial opinions have differed on how to determine whether the 40 percent threshold has been met. Some courts have favoured a strictly mathematical approach that may even involve hourly calculations.¹⁴⁹Other courts have placed emphasis on the functioning of the particular shared parenting regime. These differences of approach arise from the fact that the relevant criterion under section 9 of the Guidelines is the amount of time that the children are in the care and control of a parent, not the amount of time that the parent is physically present with the children. After reviewing relevant appellate decisions from across Canada, the Manitoba Court of Appeal in Mehling v Mehling¹⁵⁰ favoured a functional approach but concluded that a decision as to the proper approach falls within the discretion of the presiding judge. Irrespective of the methodology favoured, the 40 percent criterion must be satisfied before section 9 of the Guidelines is triggered.¹⁵¹Time spent by a child sleeping, in daycare, or at school is credited to the parent who has care and control over the child at that time.¹⁵²Parents who exercise access for part of a day, such as midweek evening access, cannot be credited with a full day when the custodial parent would be called upon if anything happened while the child was at school.¹⁵³A custodial parent will ordinarily be credited with time that a child spends sleeping, or at daycare, or at school,¹⁵⁴except for those hours when the non-custodial parent is actually exercising rights of access or the child is sleeping in that parent’s home.¹⁵⁵

The existence of an order or agreement for joint guardianship or joint legal

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custody is not a criterion for the application of section 9. The 40 percent criterion is quantitative as applied to one of two aspects of the relationship between the child and the parents, namely access or physical custody.¹⁵⁶The amount of child support to be paid pursuant to section 9 of the Federal Child Support Guidelines when the minimum 40 percent criterion has been satisfied must be determined by taking into account (a) the amounts set out in the applicable tables for each spouse; (b) the increased costs of shared custody; and (c) the conditions, means, needs, and other circumstances of each spouse and of any child for whom support is sought.¹⁵⁷A court is not compelled to make a formal finding of the precise percentage of time that each parent is responsible for the child. There is nothing in section 9 of the Guidelines to suggest that the amount of child support must invariably reflect the percentages of shared parenting. A contextual approach that does not place undue reliance upon percentages or formulas is required. Shared parenting is usually expensive for both parents and it cannot be assumed that, once the 40 percent threshold is met, the parent who spends more time with the child will have higher costs than the parent who spends less time with the child. Even if a finding is made with respect to the percentage of the year that each parent is responsible for the child, this neither avoids nor assists in the financial analysis that must be undertaken pursuant to sections 9(b) and (c) of the Guidelines, which respectively require the court to have regard to any proven increased costs of the shared-parenting regime and to the relative standards of living available in the two households and the ability of each parent to absorb the costs required to maintain an appropriate standard of living.¹⁵⁸In Contino v Leonelli-Contino,¹⁵⁹the Supreme Court of Canada, by a majority of eight to one, held that section 9 of the Guidelines promotes flexibility and fairness by ensuring that the economic reality and particular circumstances of each family are accounted for. The three listed factors all structure the exercise of judicial discretion and no single factor prevails. The weight given to each of the three factors will vary according to the particular circumstances of each case. There is no presumption in favour of awarding at least the amount prescribed by section 3 of the Guidelines. Nor is there any presumption in favour of reducing a parent’s child support obligation below

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that amount, because after an analysis of all three factors in section 9, a court may conclude that the normal Guidelines amount should be paid in full under the circumstances of the particular case.¹⁶⁰A simple set-off between the table amounts payable by each parent is an appropriate starting point under section 9(a), but it must be followed by an examination of the continuing ability of the recipient parent to meet the financial needs of the child, especially in light of the fact that many costs are fixed. Where both parents are making effective contributions, it is necessary to verify how each parent’s actual contribution compares to the table amount that is provided for each of them. This will provide the judge with better insight when deciding whether the adjustments to be made to the set-off amount are based on the actual sharing of child-related expenses. The court retains the discretion to modify the set-off amount where, considering the financial situation of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move between the respective households. Section 9(b) of the Federal Child Support Guidelines recognizes that the total cost of raising children may be greater in shared-custody situations than in sole-custody situations. The court will examine the budgets and actual expenditures of both parents in addressing the needs of the children and determine whether shared custody has resulted in increased costs globally. These expenses will be apportioned between the parents in accordance with their respective incomes. Lastly, section 9(c) vests the court with a broad discretion to analyze the resources and needs of both the parents and the children. It is important to keep in mind the objectives of the Guidelines that require a fair standard of support for the child and fair contributions from both parents. The court will look at 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 the circumstances.¹⁶¹Financial statements and/or child-expense budgets are necessary for a proper evaluation of section 9(c).¹⁶²

There is no need to resort to section 10 and section 7¹⁶³of the Guidelines either to increase or to reduce support, since the court has full discretion under section 9(c) to consider "other circumstances" and order the payment of any amount above or below the table amounts. It may be that section 10 would find application in an extraordinary situation. It is important that the parties lead evidence relating to sections 9(b) and 9(c), and courts should demand information from the parties when the evidence is deficient. A court

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should neither make "common-sense" assumptions about costs incurred by the payor parent, nor apply a multiplier to account for the fixed costs of the recipient parent, such as has been done by some courts in the past. Although the Comparison of Household Standards of Living Test in Schedule II of the Guidelines, which is included in Child View Calculations, is normally used in the context of the undue hardship provisions of section 10 of the Guidelines, its use in the broad discretionary context of section 9(c) of the Guidelines is neither required nor precluded. In some situations it will provide assistance. Provided that it is not overemphasized at the expense of the required consideration of the relevant personal factors applicable to the parties under section 9(c) of the Guidelines, its use by the trial judge does not constitute a reviewable error.

The majority judgment in Contino v Leonelli-Contino denounces a strict formulaic approach to the determination of child support in shared-parenting situations, and emphasizes the need for relevant financial evidence to be adduced so that the court can address the factors specified in paragraphs 9(b) and (c) of the Guidelines, in addition to taking account of the table amount payable by each parent, as required by paragraph 9(a). After reviewing diverse formulas that had previously been applied, especially in British Columbia, the Supreme Court of Canada in Contino v Leonelli-Contino rejects the use of prorated set-offs...