The current method of calculating child support obligations in cases of shared care is not working for most families in that situation. In a letter to Justice Canada the Canadian Bar Association’s Family Law Section says the government ought to make changes to the Federal Child Support Guidelines for situations of shared care. “A rebuttable presumption that the straight offset be applied in these cases would be more consistent with the goals of the Guidelines,” the Section says.
Section 9 of the Guidelines addresses shared care, stating that expenses in those circumstances should be determined by taking into account the amounts set out in the tables for each spouse, the increased costs of shared care arrangements and the conditions, means and circumstances of each spouse.
In Contino v Leonelli-Contino, Justice Bastarache examined child support for children whose parents shared their care, and wrote that “Parliament, in adopting s. 9, deliberately chose to emphasize the objectives of fairness, flexibility and recognition of the actual conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought, even if to the detriment of predictability, consistency and efficiency to some degree.”
However, the Section notes, applying Contino is not practical in most cases. “The difficulty and expense inherent in meeting the requirements of s. 9(b) and (c) of the Guidelines fails to fulfill the Guidelines’ objectives of ensuring that children continue to benefit from the means of both their parents, increases conflict and tension between parents, reduces the objectivity of child support calculations, and is detrimental to an efficient court process.”
In addition, preparing for a Contino analysis can be costly in time and money, and the process is especially daunting for self-represented parties given that the Guidelines offer no guidance on how to navigate these complex matters.
The Section’s proposal is to implement a rebuttable presumption that a straight offset be applied in cases of shared care. That means the parent with the higher income would pay the other parent the difference between their respective table amounts.
“This presumption would provide guidance to parents and courts, increase predictability, consistency and court efficiency and reduce parental conflict by making child support calculations more objective. This would also allow parents to easily adjust support as incomes change and would allow recalculation services (where available) to recalculate support based on a specified formula. A presumption would also increase access to justice by increasing the simplicity, predictability and objectivity of calculations of child support in situations of shared care.”
Making the straight offset a presumption would leave open the possibility for parties to rebut the presumption in cases where it would be inappropriate, as with other provisions in the Guidelines that permit these arguments.
One possible concern with the Section’s proposal is that it may fail to consider expenses normally borne only by one parent and that are not part of the current definition of special or extraordinary expenses commonly known as “s. 7 expenses,” such as outerwear. “This concern should be ameliorated by creating a new category of s. 7 expenses that must be considered in cases of shared care/parental responsibility. This category could be in a new s. 7(1.2) and include items such as haircuts, outerwear or other items or services where the cost incurred benefits the children in both homes.”
The Section also recommends revising s. 7 expenses to include expenses such as electronics, sporting equipment not associated with formal lessons or insurance for vehicles driven by children. “If there is no appetite for expanding the enumerated s. 7 expenses, a general category of expenses subject to the court’s discretion could be added for use in appropriate cases.”
The current method of determining child support obligation in cases of shared care are not working for most families in this situation. The changes proposed by the CBA Section would ensure that children continue to benefit from the financial means of both parents, reduce conflict between former spouses, promote efficiency and consistency in child support orders and improve access to justice.