Shared parenting arrangements
| Author | Julien D. Payne - Marilyn A. Payne |
| Pages | 303-334 |
CHAPTER 6
SHARED PARENTING ARRANGEMENTS1
A. SPLIT CUSTODY: SECTION 8 OF THE GUIDELINES
Section of the Federal Child Support Guidelines provides t hat, where each spouse or former
spouse has custody of one or more children, the amount of a chi ld support order is the differ-
ence between the amount that each would otherwis e 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 th 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 section expenses may be ordered to be shared equa lly. e language of section of the
Guidelines suggests that a parent who intends to invoke the section should be seek ing support
for the child in his or her care from the other parent. Bi lateral orders may be granted for child
support where each parent had custody of one or more children of the marriage. Section of
See, generally, Carol Rogers on, “Child Support under the Gu idelines in Cases of Split a nd Shared Custody”
() Can. J. Fam. L. ; see al so Kim Hart Wensley, “Shared Cust ody — Section of the Federal Child
Support Guidelines: Formul aic? Pure Discretion? Struct ured Discretion?” () Can. Fam . L.Q. .
L.D.W. v. K.D.M., ABQB (conjoint operation of ss . and of Federal Child Support Guid elines);
S.E.H. v. S .R.M., [] B.C.J. No. (S.C.) (split custody involving biolog ical child and stepch ild; set-off
under s. of Federal Child S upport Guidelines); T.M. v. D.M., NBQB ; Fitzpatrick v. Fitzpatrick,
[] N.J. No. (U.F.C.); Tran v. Tr an, NSSC ; Bergm an-Illnik v. Illnik, [] N.W.T.J. No.
(S.C.) ; Monahan-Joudrey v. Joudrey, ONSC ; MacLean v. Mac Lean, [] P.E.I.J. No. (T.D.);
Agioritis v. Agioritis, SKQB . Compare Dudka v. Dudka, [] N.S.J. No. (T.D.).
Hladun v. Hladun, [] S.J. No. (Q.B.).
Cram v. Cram, [] B.C.J. No. (S.C.).
Pretty v. Pretty, NSSC .
Tanner v. Simpson, [] N.W.T.J. No. (S.C.).
Mayer v. Mayer, [] O.J. No. (S.C.J.) (cost-of-living indexation of orders); Holman v. Bigne ll, []
O.J. No. (S.C.J.).
CHILD SUPPORT GUIDELINES IN CANADA, 2017
the Federal Child Support Guidelines, u nlike section , provides no judicial d iscretion in the
assessment 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 ody.” Sec tion 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 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 household. Dev iation from the a mount nor-
mally payable under section is usua lly encountered in extraordinar y cases, where there
are grossly disparate li festyles. In the absence of a finding of undue hardsh ip, 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 articu lated in that section. A significa nt
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 discretion 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.
Wr ight v. Wrigh t, [] B.C.J. No. (S.C.); Kavanagh v. Kavanagh, [] N.J. No. (S.C.).
Auckl and v. McKnight, [] S.J. No. (Q.B.).
Khoee-Solomone scu v. Solomonescu, [] O.J. No. (Gen. Div.); see also Sutcliffe v. Sutcliff e, []
A.J. No. (Q.B.); Davis v. Davis, [] B.C.J. No. (S.C.) (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, [] N.J. No. (S.C.); Bauer v. Noonan, [] S.J. No. (Q.B.).
Tanner v. Simpson, [] N.W.T.J. No. (S.C.).
Richardson v. Richard son, [] O.J. No. (Gen. Div.); see also Alexander v. Alexander, [] O.J. No.
(S.C.J.).
Waller v. Waller, [] O.J. No. (Gen. Div.); compare Ellis v. Ellis, [] P.E.I.J. No. (T.D.); Sec-
tion B, below in thi s chapter.
Scharf v. Scharf, [] O.J. No. (Gen. Div.); see also Snyder v. Snyder, [] N.B.J. No. (Q.B.), Farmer v.
Conway, [] N.S.J. No. (T.D.).
Plante v. Plante, [] A.J. No. (Q.B.); Inglis v. Birkbeck, [] S.J. No. (Q.B.).
Horner v. Horner, [] O.J. No. (C.A.); K.O. v. C .O., [] S.J. No. (Q.B.).
Aschenbrenner v. Aschenbrenner, [] B.C.J. No. (S.C.).
Chapter 6: Shared Parenting Arrangements
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 implementation
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 desperate
financial straits. A court m ay also take account of a post-Guidelines agreement in calculat-
ing 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 ch ild 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 sect ion of the Guidelines. Section
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 spouse 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 meani ng 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 t he 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 Guideli nes in proportion to the
respective parental incomes, or in such other proportion as the court deems rea sonable.
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. Cathcart , [] O.J. No. (S.C.J.).
Barker v. Barker, [] B.C.J. No. (S.C.).
Stevens v. Stevens, [] A.J. No. (Q.B.); compare Park v. Park, [] O.J. No. (S.C.J.).
Sc haan v. Schaan, [] B.C.J. No. (S.C.).
MacLeod v. Druhan, [] N.S.J. No. (Fam . Ct.).
Schmid v. Smith, [] O.J. No. (S.C.J.).
Estey v. Estey, [] N.S.J. No. (S.C.); Fraser v. Gallant, [] P.E.I.J. No. (S.C.); Hamonic v. Gron-
vold, [] S.J. No. (Q.B.). Compare K.O. v. C .O., [] S.J. No. (Q.B.) (shared custody).
L.D.W. v. K.D.M., ABQB ; Patrick v. Patrick, [] B.C.J. No. (S.C.); Tran v. Tra n, NSSC
; Sayong v. Aindow, [] N.W.T.J. No. (S.C.); Fraser v. Fraser, [] O.J. No. (S.C.J.); Fransoo v.
Fransoo, [] S.J. No. (Q.B.).
Compare Tooth v. Knott, [] A.J. No. (Q.B.); see Section B(), below in this chapter.
Pitura v. Pitu ra, [] N.W.T.J. No. (S.C.).
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