Shared parenting arrangements

AuthorJulien D. Payne; Marilyn A. Payne
Section  of the Federal Child Support Guidelines provides t hat, where each spouse or for-
mer spouse has custody of one or more children, the amount of a child support order is t he
dif‌ference between the amount that each would otherw ise pay if a child support order were
sought against each of them. Given possible future changes i n the parental incomes, the
parents may be judicially direc ted to exchange complete copies of their income tax return s
by  May of each year. Where the parents earn the same income and each is responsible
for the support of a child of the marriage, the cour t may decline to make any order for child
support and the sec tion  expenses may be ordered to be shared equally. e language of
section  of the Guidelines suggests t hat a parent who intends to invoke the section should
be seeking support for the child in h is or her care from the other parent. Bilateral orders
may be granted for child support where each parent had custody of one or more children of
See, generally, Carol Rogers on, “Child Support Under the Guideli nes in Cases of Split and Sha red Custody”
()  Canadian Journal of Family Law ; see a lso Kim Hart Wensley, “Shared Cu stody — Section 
of the Federal Child Supp ort Guidelines: Formula ic? Pure Discretion? Struct ured Discretion?” () 
Canadian Family Law Qu arterly .
LDW v KDM,  ABQB  (conjoint operation of ss  and  of Federal Child S upport Guidelines); SEH
v SRM, [] BCJ No  (SC) (split custody involvi ng biological child and ste pchild; set-of‌f under s  of
Federal Child Suppor t Guidelines); TM v DM,  NBQB ; Fitzpatrick v Fitzpatrick, [] NJ No 
(UFC); Tran v Tran ,  NSSC ; Bergman-Illnik v Illnik, [] NWTJ No  (SC); Monahan-Joudrey
v Joudrey,  ONSC ; MacLean v Mac Lean, [] PEIJ No  (TD); Agioritis v Agioritis, 
SKQB . Compare Dudka v Dudka, [] NSJ No  (TD).
Hladun v Hladun, [] SJ No  (QB).
Cram v Cram, [] BCJ No  (SC).
Pretty v Pretty,  NSSC .
Tanner v Simpson, [] NWTJ No  (SC).
Shared Parenting Arrangements 
the mar riage. Section  of the Federal Child Support Guidelines, unl ike section , provides
no judicial discretion in the as sessment of child support.
Section  of the Guidelines can not be invoked by a respondent with respect to children
of a previous marriage, where insuf‌f‌icient evidence is adduced to establish a prima facie
case that the applicant stood in t he place of a parent to those children.
Section  of the Federal Child Support Guidelines may be applied where each of the
parents provides a home for one or more of their dependent children, even though one
of the children is an adult attending u niversity in respect of whom “neither parent has
cu st od y.” Section  of the Guidelines w ill not be satisf‌ied, however, where the evidence is
insuf‌f‌icient to establish that t he adult child is a “child of the marriage” with in the meaning
of the Divorce Act. Pursuant to section ()(b) of the Federal Child Support Guidelines, a
trial judge may be justif‌ied in dev iating from the applicable table amount because one of the
children is over the age of provincial majority a nd is not totally dependent on either parent.
Pursuant to section (.) of the Divorce Act, a court may order the dif‌ferential between the
two table amounts to be paid for only ten months of the year, so as to mainta in conformity
with the ten months’ pattern establi shed by the divorce judgment.
ere have been cases wherein a court has increased t he normally applicable amount
payable in cases of split custody under sect ion  of the Federal Child Support Guidelines,
because the child would be requi red to live frugally in one parental household, while enjoy-
ing a luxurious li festyle in the other parental hous ehold. Deviation from t he amount nor-
mally payable under section  is usua lly encountered in extraordina ry cases, where there
are grossly disparate li festyles. In the absence of a f‌inding of undue hard ship, however,
section  of the Guidelines provides no residual discret ion to the court to deviate from the
dif‌ferential between the t wo table amounts, as articulated in that section. A sign if‌icant
disparity in t he lifestyles in the two households may be addressed, however, by an order for
spousal supp ort or a variation order for i ncreased spousal s upport. Although there may be
little dif‌ference from an economic sta ndpoint between split custody under section  of the
Guidelines and shared custody u nder section  of the Guidelines, the broad discret ion con-
ferred on the court by section  is not mirrored in t he provisions of section , in the absence
of an intermingli ng of split and shared custody arrangements involving the same fam ily.
Holman v Bignell, [] OJ No  (SCJ).
Wright v Wr ight, [] BCJ No  (SC); Kavanagh v Kavanagh, [] NJ No  (SC).
Auckland v McKnight, [] SJ No  (QB).
 Khoee-Solomone scu v Solomonescu, [] OJ No  (Gen Div); see also Sut clif‌fe v Sutclif‌fe, []
AJ No  (QB); Davis v Davis, [] BCJ No  (SC) (application of s  of Federal Child Support
Guidelines in circu mstances involvin g split custody over summer month s when adult child not away at
university); Kavanagh v Kavanagh, [] NJ No  (SC); Bauer v Noonan, [] SJ No  (QB).
 Tanner v Simpson, [] NWTJ No  (SC).
 Richardson v Rich ardson, [] OJ No  (Gen Div); see also Alexander v Alexander, [] OJ No 
 Waller v Waller, [] OJ No  (Gen Div); compare Ellis v Ellis, [] PEIJ No  (TD); Section B,
below in this chap ter.
 Scharf v Schar f, [] OJ No  (Gen Div); see also Snyder v Snyder, [] NBJ No  (QB); Farmer v
Conway, [] NSJ No  (TD).
 Plante v Plante, [] AJ No  (QB); Inglis v Birkbeck, [] SJ No  (QB).
 Horner v Horner, [] OJ No  (CA); KO v CO, [] SJ No  (QB).
 Aschenbrenner v Aschenbrenner, [] BCJ No  (SC).
e application of section  of the Guidelines may result in an order that fal ls short of
equalizing t he children’s lifestyles.
A court may refuse to interfere with a spou sal agreement that pre-dated implementa-
tion of the Federal Child Support Guidelines, where the child ren are living under a split
custody arrangement and the application of the Guidelines would leave the mother in des-
perate f‌inancial straits. A court may also ta ke account of a post-Guidelines agreement in
calculating the appropriate set-of‌f to be made, where one of the children goes to live with
the payor after the execution of the agreement which provided for higher amounts of chi ld
support than would have been payable under the Guidelines.
e undue hardship provisions of section  of the Federal Child Support Guidelines
apply to split custody arrangements fal ling within se ction  of the Guidelines. Sect ion 
of the Federal Child Support Guidelines may generate an unfa ir advantage for the higher
income earning spouse in sofar as the dif‌ferential in the table amounts t hat is payable to the
lower income spouse may be less than the support that the lower income earning spous e is
required to contribute for the child in the hig her income home. Given these circumstances,
a court may conclude that a f‌inding of undue hardship is wa rranted under section  of the
Guidelines . Section ()(d) of the Guidelines has no application to a case of split custody,
if the child in question is a “child of the ma rriage” within the mea ning of section  of the
Divorce Act.
Where parents have a split custody arrangement but the income of one of the parents
falls short of the mi nimum threshold under the applicable provincial table, the other parent
will be required to pay the full table amount of support for the child in the custody of the
low- or no-income parent.
In addition to ordering payment of the dif‌ferential between the t wo table amounts pur-
suant to section  of the Federal Child Support Guideline s, a court may order a sharing of
special or extraordina ry expenses under section  of the Guidelines in proportion to the
respective parental incomes, or in such other proportion as the court deems reasonable.
A court may refuse to apply section  of the Federal Child Support Guidelines so as to
reduce the amount of support payable where no satisfactory evidence is adduced concern-
ing the resp ondent’s income.
 Kendry v Cathcar t, [] OJ No  (SCJ).
 Barker v Barker, [] BCJ No  (SC).
 Stevens v Steven s, [] AJ No  (QB); compare Park v Park, [] OJ No  (SCJ).
 Sc haan v Schaan, [] BCJ No  (SC).
 MacLeod v Druh an, [] NSJ No  (Fam Ct).
 Schmid v Smith, [] OJ No  (SCJ).
 Estey v Estey, [] NSJ No  (SC); Fraser v Gallant, [] PEIJ No  (SC); Hamonic v Gronvold, []
SJ No  (QB). Compare KO v CO, [] SJ No  (QB) (shared custody).
 LDW v KDM,  ABQB ; Patrick v Patrick, [] BCJ No  (SC); Tran v Tran,   NSSC ;
Sayong v Aindow, [] NWTJ No  (SC); Fraser v Fras er, [] OJ No  (SCJ); Fransoo v Fransoo,
[] SJ No  (QB).
 Compare Tooth v Knott, [] AJ No  (QB); see Section B(), below in thi s chapter.
 Pitura v Pit ura, [] NWTJ No  (SC).

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