Shared parenting arrangements

• Author: Julien D. Payne; Marilyn A. Payne
• Pages: 306-338

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CHAPTER 6

SHARED PARENTING ARRANGEMENTS

A. SPLIT CUSTODY: SECTION 8 OF THE GUIDELINES

Section  of the Federal Child Support Guidelines provides that, 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 in 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 his 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 university in respect of whom “neither parent has

custody.” Section  of the Guidelines will 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 the normally applicable amount

payable in cases of split custody under section  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 lifestyle in the other parental household. Deviation from the amount nor-

mally payable under section  is usually encountered in extraordinary cases, where there

are grossly disparate lifestyles. In the absence of a f‌inding of undue hardship, however,

section  of the Guidelines provides no residual discret ion to the court to deviate from the

dif‌ferential between the two table amounts, as articulated in that section. A signif‌icant

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 

(SCJ).

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).

CHILD SUPPORT GUIDELINES IN CANADA, 2020

e application of section  of the Guidelines may result in an order that falls short of

equalizing t he children’s lifestyles.

A court may refuse to interfere with a spousal agreement that pre-dated implementa-

tion of the Federal Child Support Guidelines, where the children 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 take 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 falling within section  of the Guidelines. Section 

of the Federal Child Support Guidelines may generate an unfair 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 marriage” within the meaning 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 Guidelines, a court may order a sharing of

special or extraordinary 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).