Split and Shared Parenting Time Arrangements

Date27 July 2022
AuthorJulien D. Payne,Marilyn A. Payne
323
 
Split and Shared Parenting Time
Arrangements1
A. SECTION  OF THE GUIDELINES: SPLIT PARENTING TIME DUE
TO SEPARATION OF SIBLINGS
Section 8 of the Federal Child Support Guidelines provides that if there are two or more chil-
dren and each spouse has the majority of parenting time with one or more of those children,2
the amount of a child support order is the dierence between the amount that each would
otherwise pay if a child support order were sought against each of the spouses. 3 Pursuant to
section 2(1) of the Federal Child Support Guidelines, “majority of parenting time” means a
period of time that is more than 60 percent of parenting time over the course of a year.4 Given
possible future changes in the parental incomes, parents may be judicially directed to exchange
complete copies of their income tax returns by 15 May of each year.5 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 support6 and the section 7 expenses may be ordered to be
shared equally.7 e language of section 8 of the Guidelines suggests that a parent who intends
See Guidelines Amending the Federal Child Support Guidelines, SOR/-,  November ;
Canada Gazette, Part II, Volume , Number .
See, generally, Carol Rogerson, “Child Support Under the Guidelines in Cases of Split and Shared Custody”
()  Canadian Journal of Family Law ; see also Kim Hart Wensley, “Shared Custody — Section 
of the Federal Child Support Guidelines: Formulaic? Pure Discretion? Structured Discretion?” () 
Canadian Journal of Family Law .
LDW v KDM,  ABQB  (conjoint operation of ss  and  of Federal Child Support Guidelines); SEH
v SRM, [] BCJ No  (SC) (split time-sharing involving biological child and stepchild; se t-o under
s  of Federal Child Support Guidelines); Pozzolo v Pozzolo,  BCCA ; 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 MacLean, []
PEIJ No  (TD); Agioritis v Agioritis,  SKQB . Compare Dudka v Dudka, [] NSJ No  (TD).
See Guidelines Amending the Federal Child Support Guidelines, SOR/-,  November ;
Canada Gazette, Part II, Volume , Number .
Hladun v Hladun, [] SJ No  (QB).
Cram v Cram, [] BCJ No  (SC).
Pretty v Pretty,  NSSC .
324     , 
to invoke the section should be seeking support for the child in his or her care from the other
parent.8 Bilateral orders may be granted for child support where each parent has primary care
of one or more children of the marriage.9 Section 8 of the Federal Child Support Guidelines,
unlike section 9, provides no judicial discretion in the assessment of child support.10
Section 8 of the Guidelines cannot be invoked by a respondent with respect to children
of a previous marriage, where insucient evidence is adduced to establish a prima facie ca se
that the applicant stood in the place of a parent to those children.11
Section 8 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.12 Section 8 of the Guidelines will not be satised,
however, where the evidence is insucient to establish that the adult child is a “child of the
marriage” within the meaning of the Divorce Act.13 Pursuant to section 3(2)(b) of the Federal
Child Support Guidelines, a trial judge may be justied 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.14 Pursuant to section 17(6.2) of the Divorce Act, a court may order
the dierential between the two table amounts to be paid for only ten months of the year, so
as to maintain conformity with the ten months’ pattern established by the divorce judgment.15
ere have been cases wherein a court has increased the normally applicable amount
payable in cases of split primary care of the children under section 8 of the Federal Child
Support Guidelines because a child would be required to live frugally in one parental house-
hold, while enjoying a luxurious lifestyle in the other parental household.16 Deviation from
the amount normally payable under section 8 is usually encountered in extraordinary cases,
where there are grossly disparate lifestyles.17 In the absence of a nding of undue hardship,
however, section 8 of the Guidelines provides no residual discretion to the court to deviate
from the dierential between the two table amounts, as articulated in that section.18 A signi-
cant disparity in the lifestyles in the two households may be addressed, however, by an order
for spousal support or a variation order for increased spousal suppor t.19 Although there may
be little dierence from an economic standpoint between split parenting time arrangements
under section 8 of the Guidelines and shared parenting time arrangements under section 9
Tanner v Simpson, [] NWTJ No  (SC).
Holman v Bignell, [] OJ No  (SCJ).
 Wright v Wright, [] BCJ No  (SC); Kavanagh v Kavanagh, [] NJ No  (SC). And see
Pozzolo v Pozzolo,  BCCA .
 Auckland v McKnight, [] SJ No  (QB).
 Khoee-Solomonescu v Solomonescu, [] OJ No  (Gen Div); see also Sutclie v Sutclie, [] AJ
No  (QB); Davis v Davis, [] BC J No  (SC); Kavanagh v Kavanagh, [] NJ No  (SC);
Bauer v Noonan, [] SJ No  (QB).
 Tanner v Simpson, [] NWTJ No  (SC).
 Richardson v Richardson, [] 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 chapter.
 Scharf v Scharf, [] 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).
Split and Shared Parenting Time Arrangeme nts325
of the Guidelines, the broad discretion conferred on the court by section 9 is not mirrored in
the provisions of section 8, in the absence of an intermingling of split and shared parenting
time arrangements involving the same family.
e application of section 8 of the Guidelines may result in an order that falls short of
equalizing the children’s lifestyles.20
A court may refuse to interfere with a spousal agreement that pre-dated implementation
of the Federal Child Support Guidelines, where the children are living under a split parenting
time arrangement and the application of the Guidelines would leave the mother in desperate
nancial straits.21 A court may also take account of a post-Guidelines agreement in calculat-
ing the appropriate set-o to be made, where one of the children goes to live with the payor
after the execution of the agreement that provided for higher amounts of child support than
would have been payable under the Guidelines.22
e undue hardship provisions of section 10 of the Federal Child Support Guidelines
apply to split parenting time arrangements falling within section 8 of the Guidelines.23 Sec-
tion 8 of the Federal Child Support Guidelines may generate an unfair advantage for the
higher income earning spouse insofar as the dierential in the table amounts that 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 higher income home. Given these cir-
cumstances, a court may conclude that a nding of undue hardship is warranted under sec-
tion 10 of the Guidelines.24 Section 10(2)(d) of the Guidelines has no application to a case of
split parenting time arrangements, if the child in question is a “child of the marriage” within
the meaning of section 2 of the Divorce Act.25
Where each parent has the majority of parenting time with one or more of the children
but the income of one of the parents falls short of the minimum threshold under the applic-
able provincial table, the other parent will be required to pay the full table amount of support
for the child in the primary care of the low- or no-income parent.26
In addition to ordering payment of the dierential between the two table amounts pur-
suant to section 8 of the Federal Child Support Guidelines, a court may order a sharing of
special or extraordinary expenses under section 7 of the Guidelines in proportion to the
respective parental incomes,27 or in such other proportion as the court deems reasonable.28
A court may refuse to apply section 8 of the Federal Child Support Guidelines so as to
reduce the amount of support payable where no satisfactory evidence is adduced concerning
the respondent’s income.29
 Kendry v Cathcart, [] OJ No  (SCJ).
 Barker v Barker, [] BCJ No  (SC).
 Stevens v Stevens, [] AJ No  (QB); compare Park v Park, [] OJ No  (SCJ).
 Schaan v Schaan, [] B CJ No  (SC).
 MacLeod v Druhan, [] 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).
 LDW v KDM,  ABQB ; Patrick v Patrick, [] BCJ No  (SC); Tran v Tra n,  NSSC
; Sayong v Aindow, [] NWTJ No  (SC); Fraser v Fraser, [] OJ No  (SCJ); Fransoo v
Fransoo, [] SJ No  (QB).
 Compare Tooth v Knott, [] AJ No  (QB); see Section B(), below in this chapter.
 Pitura v Pitura, [] NWTJ No  (SC).

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