B. Shared Custody: Section 9 of the Guidelines

Author:Julien D. Payne - Marilyn A. Payne

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1) Basic Provisions of Section 9 of the Guidelines

Section 9 of the Federal Child Support Guidelines provides that where a spouse or former spouse exercises a right of access to, or has physical custody of, a child for not less than 40 percent 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 or former spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs, and other circumstances of each spouse or former spouse and of any child for whom support is sought.28The language of section 9 is imperative in that its provisions are to be applied if the 40 percent criterion is satisfied. A court has no discretion to depart from the 40 percent minimum threshold, although a discretion exists with respect to the quantification of child support under sections 9(a), (b), and (c) of the Guidelines. These criteria are conjunctive; they must all be considered.29Although there are factors other than the parental incomes to be considered under section 9 of the Federal Child Support Guidelines, a court is not entitled to disregard the income that should be imputed to a parent.30It is important to lead evidence relating to sections 9(b) and 9(c) of the Guidelines.31

2) The 40 Percent Criterion

The spouse who invokes section 9 of the Guidelines has the onus of proving that he or she cares for the child at least 40 percent of the time over the course of a year,32which is the equivalent of 146 days33or 3504 hours34of the year.

The meaning of the phrase "over the course of a year" in section 9 was considered by the Newfoundland and Labrador Court of Appeal in Gosse v. Sorensen-Gosse,35wherein Wells J.A. ventured the following opinion:

There is nothing in the Guidelines to require application of the formula to a calendar year, or to a year determined on any other specific basis. I would conclude that the basis for determination of the time frame against which to measure the required percentage of cus-

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tody would depend on the circumstances in each case, considered in the context of any compelling practicalities. One cannot imagine that the phrase "over the course of a year" was ever intended to have indeterminate beginning and ending times, depending on what one spouse or the other may wish to assert in the circumstances. Such an interpretation would invite confusion and abuse. As well, a calendar year is the normal basis for calculating the income of a spouse in order to determine the level of financial responsibility for child support. In the ordinary course, the phrase, "over the course of a year" should, absent compelling reason to do otherwise, be taken to mean over the course of a calendar year. In the case of shared custody beginning at some point during the year, that point must be the beginning point. Then, common sense and practicality would dictate that the initial period would end at the end of that calendar year and calendar years used thereafter, unless there was some compelling reason to use a year determined on a basis other than a calendar year.

In this case, the spousal separation had occurred on March 30, 2004 and an interim custody order was granted as of March 15, 2005. The evidence disclosed that the child of the marriage had been living with the mother for more than 60 percent of the time between April 1, 2004 and March 15, 2005, but the child had spent at least 40 percent of her time with the father during the 2005 calendar year. The Newfoundland and Labrador Court of Appeal observed that the trial judge expressed no reason, compelling or otherwise, for treating the period between April 1, 2004 and March 15, 2005 as an appropriate period for determining the applicability of section 9 of the Guidelines. In its opinion, section 9 was applicable to the 2005 calendar year and for the calendar years thereafter. Accordingly, it set aside the trial judge’s order and directed that the child support obligations of the spouses be determined on the basis that each of them had custody of the child of the marriage for not less than 40 percent of the time over the 2005 calendar year.

Courts have encountered difficulty in determining whether the 40 percent criterion is satisfied.36There is no universal formula for counting the time that children spend in each parent’s care.37The calculations may be undertaken on an hourly, daily, weekly or monthly basis, or any combination of these, depending on the circumstances of the case.38

If the parent/child contact is less that 40 percent over the course of a year, the court is not burdened by the discretion arising under section 9 of the Guidelines39and a court may conclude that a short-term state of affairs which prevailed in the artificial climate developing during the spousal dispute cannot constitute the basis for a long-term decision.40In determining whether a parent has access to or physical custody of a child for "40 percent of the time over the course of a year" within the meaning of section 9 of the Federal Child Support Guidelines, some cases support an interpretation requiring twelve consecutive months and if they do not form a calendar year, they must be neither random nor specifically selected in order to reach the threshold. Other cases show a willingness to

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consider any consecutive twelve-month period, past or future, providing there is logic to the period chosen.41 It has been held that a shared parenting arrangement need not have already existed for one year in order for section 9 of the Guidelines to be triggered.42All that is required is that the parenting arrangement has been in place for a sufficiently substantial period of time to enable the court to infer that it is expected to continue during the course of the year.43Section 9 applies to interim orders as well as permanent orders, although an express reservation of the right of a trial judge to make a retroactive adjustment may be deemed appropriate.44Shared custody or access may be minimal in some months while considerable in others, but it must average 40 percent of the time over the course of a year. The requirements of section 9 are not satisfied merely because a non-custodial parent exceeds the forty percent criterion over several months during a twelve month period. Section 9 of the Guidelines does not entitle a non-custodial parent to claim a rebate in payments of child support where special circumstances involve a temporary increase in the time the children spend with their non-custodial parent.45Where there is no formal written agreement or order in place, a court should exercise caution before applying section 9 of the Guidelines to what may be short-term parenting arrangements. An application may be deemed premature where no track record has been established.46Where a new access schedule has been devised to reduce the stressful environment in which the children have been living, a court may adjourn an application to vary child support until the access regime has been in force for a minimum of six months, so that there will be a reliable record on which the court can determine the amount of time spent by the children with each parent and the application of section 9 of the Guidelines to that situation.47Some courts apply a presumption that the primary custodial parent starts with 100 percent of the time, thus requiring the other parent to prove that he or she has had access or physical custody for 40 percent of the year.48It is not the amount of time actually spent with that parent relative to the amount of time actually spent with the other parent that is relevant.49Time that a child spends sleeping or at school or daycare50or with a nanny or baby-

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sitter51is not to be ignored in determining whether a parent satisfies the requirements of the Guidelines. Section 9 of the Guidelines may require the court to count the hours for which each parent has responsibility for the child but the court is not required to inquire into the sleeping patterns of the children,52although hours spent sleeping should be credited to the parent in whose home they were sleeping.53To exclude time spent by a child in school from calculation of the time a child is the responsibility of a parent ignores the reality of child rearing.54Time spent in school or daycare should be included in the calculation as time with the parent having care and control of the child.55The relevant criterion is the amount of time that the children are in the care and control of the parent, not the amount of time that the parent is physically present with the children.56The weight of judicial authority favours the conclusion that the time during which the children are in school does not accrue to the benefit of the non-custodial parent.57Parents who exercise access for part of a day, for example, mid-week evening access, should not be credited for a full day in undertaking the calculation under section 9 of the Guidelines, where the custodial parent would be called upon, if anything happened while the child was at school.58If only part of a day is spent with a parent, it is simpler, clearer and fairer to account for the time on the basis of the number of hours spent with that parent or during...

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