A. Split Custody: Section 8 of the Guidelines

Author:Julien D. Payne - Marilyn A. Payne
Pages:294-296
 
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See note 1

Section 8 of the Federal Child Support Guidelines provides that, where each spouse or former spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each would otherwise pay if a child support order were sought against each of them.2Given possible future changes in the parental incomes, the parents may be judicially directed to exchange complete copies of their income tax returns by May 15th of each year.3Where 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 support4and the section 7 expenses may be ordered to be shared equally.5The language of section 8 of the Guidelines suggests that a parent who intends to invoke the section should be seeking support for the child in his or her care from the other parent.6Bilateral orders may be granted for child support where each parent had custody of one or more children of

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the marriage.7Section 8 of the Federal Child Support Guidelines, unlike section 9, provides no judicial discretion in the assessment of child support.8Section 8 of the Guidelines cannot 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 the place of a parent to those children.9Section 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 in respect of whom "neither parent has custody."10

Section 8 of the Guidelines will not be satisfied, however, where the evidence is insufficient to establish that the adult child is a "child of the marriage" within the meaning of the Divorce Act.11Pursuant to section 3(2)(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.12Pursuant to section 17(6.2) 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 maintain conformity with the ten months’ pattern established by the divorce judgment.13There have been cases wherein a court has increased the normally applicable amount payable in cases of split custody under section 8 of the Federal Child Support Guidelines, because the child would be required to live frugally in one parental household, while enjoying a luxurious lifestyle in the other parental household.14Deviation from the amount normally payable under section 8 is usually encountered in extraordinary cases, where there are grossly disparate lifestyles.15In the absence of a finding of undue hardship, however, section 8 of the Guidelines provides no residual discretion to the court to deviate from the differential between the two table amounts, as articulated in that section.16A significant 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 support.17Although there may be little difference from an economic standpoint between split custody under section 8 of the Guidelines and shared custody under section 9 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 custody arrangements involving the same family.

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The application of section 8 of the Guidelines may result in an order that falls short of equalizing the children’s lifestyles.18A court may refuse to...

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