Shared parenting and child support.

• Author: Christopher, Michelle C.
• Position: Family law

A recent Supreme Court of Canada decision has clarified the law concerning child support in shared parenting cases. Determining the correct amount of child support in situations where the children reside with one parent is fairly straightforward. Since the Federal Child Support Guidelines came into force in 1997, however, the law has always been a bit murky as to how to calculate support in shared parenting cases where the children reside part of the time with one parent and part of the time with the other. The usual practice in these cases has been to set off one parent's child support obligations against the other parent's obligations. This has sometimes led to difficulties in adjusting for fixed and variable cost differentials between the two households, particularly since it is assumed to be more expensive to maintain two residential households for children. Is this assumption valid? According to the Supreme Court of Canada: not always. It depends on the facts of each case.

Let's review--generally speaking, where children reside with one parent, child support is payable by the parent not having day-to-day care of the children to the parent who does have day-to-day care, under s. 3 of the Guidelines. In most of these cases, it is simply a matter of taking the non-residential care parent's total income from his or her most recent tax return and plugging that number into the appropriate table from the Guidelines, having regard to the number of children and the payor's province of residence, to find out the basic amount of child support. It is mandatory for the payor to provide basic child support (commonly referred to as "guideline support") and to the chagrin of many a payor, the residential care parent's income is not relevant at this point, nor is any income from a new partner or spouse taken into account. Save in exceptional or rare "undue hardship" cases, the court has no discretion and must order that guideline support be paid according to the payor's total income.

If there are special and/or extraordinary expenses, however, such as daycare, medical, and/or dental expenses or established, ongoing extracurricular costs, s. 7 of the Guidelines applies. The court may require each parent to pay a share of these expenses calculated proportionately to his or her income. At this point, the incomes of both parents are relevant, regardless of where the children actually reside.

Where children live in shared parenting arrangements, defined in...