Shared Parenting Arrangements
| Author | Julien D. Payne - Marilyn A. Payne |
| Pages | 294-322 |
SHARED PARENTING
ARRANGEMENTS1
A. SPLIT CUSTODY: SECTION OF THE GUIDELINES
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 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 court may decline to make any order for
child suppor t and the section expen ses may be ordered to be shared equally. e lan-
guage 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
See, generally, Carol Rogers on, “Child Support under the Gu idelines in Cases of Split a nd Shared 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 Support 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 Support Guide lines); Fitzpatrick v. Fitzpatrick, [] N.J. No. (U.F.C.);
Wats on v. Wat son, [] N.S.J. No. (S.C.); Bergman-Illnik v. Illnik, [] N.W.T.J. No. (S.C.);
Gauthier v. Hart, ONSC ; MacLean v. MacLe an, [] P.E.I.J. No. (T.D.); Gennutt v. Gennutt,
SKQB ; Antonishyn v. Boucher, SKQB ; 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.).
Shared Parenting Arrangements
children of the marriage. Sect ion of the Federal Child Support Guideline s, unlike section
, provides no judicial discretion in the asses sment 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 the place of a parent to those ch ildren.
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 respect 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 i s a child of the marriage within the meani ng of the Divorce
Act. Pursuant to section ()(b) of the Federal Child Support Guidelines, a trial judge may
be justified in deviating from the applicable table amount because one of the children is
over the age of provincial majority and is not totally dependent on either parent. Pur suant
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 w ith 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 the other parental household. Deviation 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 discretion to the court to deviate from the
differential between the t wo table amounts, as artic ulated 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 supp ort. Although there may be
little difference from an economic sta ndpoint between split custody u nder 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 index ation of orders); Holman v. Bignell,
[] O.J. No. (S.C.J.).
Wright v. Wrigh t, [] B.C.J. No. (S.C.); Kavanagh v. Kavanagh, [] N.J. No. (S.C.).
Auckland v. McKnight, [] S.J. No. (Q.B.).
Khoee-Solomonescu v. Solomones cu, [] O.J. No. (Gen. Div.); see also Sutcliffe v. Sutc liffe, []
A.J. No. (Q.B.); Davis v. Davis, [] B.C.J. No. (application of s. of Federal Child Suppor t
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.).
Wall er v. Wal ler, [] O.J. No. (Gen. Div.); compare Ellis v. Ellis, [] P.E.I.J. No. (T.D.).
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.).
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