Shared parenting arrangements
| Author | Julien D. Payne, Marilyn A. Payne |
| Pages | 305-336 |
SHARED PARENTING
ARRANGEMENTS1
A. SPLIT CUSTODY: SECTION 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 chi ld support order is the
difference between the amount that each would otherw ise pay if a child support order were
sought against each of them. Given possible future cha nges in the parental incomes, the
parents may be judicially direc ted to exchange complete copies of their income tax retu rns
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 equal ly. 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. Bilatera l 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 Guide lines in Cases of Split and S hared Cus-
tody” () Can. J. Fam. L. ; se e also Kim Hart Wensley, “Share d Custody – Section of the Fed eral
Child Support Guidelines: Formu laic? Pure Discretion? Struc tured Discretion?” () Can. Fa m. L.
Q. .
L.D.W. v. K.D.M., ABQB (conjoint op eration of ss. and of Federal Child Suppo rt Guidelines);
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 ; MacLe an v. MacLean, [] 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.).
CHILD SU PPORT GUIDELINES IN CA NADA,
the mar riage. Section of the Federal Child Support Guidelines, un like 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 establi sh 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 par-
ents provides a home for one or more of their dependent children, even though one of the
children is an adult attending u niversity in respec t of whom “neither parent has custody.”
Section of the Guidelines wi ll not be satisfied, however, where the evidence is insufficient
to establish that the adult child is a “child of the marriage” within the mea ning of the Di-
vorce Act. Pursua nt to section ()(b) of the Federal Child Support Guidelines, a trial judge
may be justified in deviati ng from the applicable table amount because one of the child ren
is over the age of provincial majority and is not total ly dependent on either parent. Pursu-
ant 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 maintai n conformity with
the ten months’ pattern established 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 t he other parental household. Devi ation from the 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 u ndue hardship, 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 supp ort. 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.
Mayer v. Mayer, [] O.J. No. (S.C.J.) (cost-of-living indexation of orders); Holman v. Bignell,
[] O.J. No. (S.C.J.).
Wright v. Wr ight, [] B.C.J. No. (S.C.); Kavanagh v. Kavanagh, [] N.J. No. (S.C.).
Auckland v. McKnight, [] S.J. No. (Q.B.).
Khoee-Solomone scu v. Solomonescu, [] O.J. No. (Gen. Div.); see also Sutcliff e v. Sutcliffe, []
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.).
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 children a re 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 sec tion 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 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 mean ing 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 i n 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 sect ion of the Guidelines in proportion to the
respective parental incomes, or in such other proportion as the cour t deems reasonable.
A court may refuse to apply section of the Federal Child Suppor t 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.).
Schaan 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 cus tody).
L.D.W. v. K.D.M., ABQB ; Patrick v. Patrick, [] B.C.J. No. (S.C.); Tra n v. Tr an, 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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