British Columbia Family Law Blog

Straight Set-off: Middleton v. MacPherson (1997), 204 A.R. 37 (Alta. Q.B.), subtract the table amount for the custodial parent from the table amount for the access parent.
Pro-Rated Set-off: Spanier v. Spanier (1998), 52 B.C.L.R. (3d) 343 (B.C.S.C.), multiply the custodial parent’s Guidelines amount by the access parent’s percentage of time. Then subtract that number by the access parent’s Guidelines amount multiplied by the custodial parent’s percentage of time.
Straight Pro-Rate: Spanier v. Spanier, take the percentage of time the custodial parent has the children multiplied by the Guidelines amount for the access parent.
Pro-Rate Multiplier: Hunter v. Hunter (1998), 37 R.F.L. (4th) 260 (Ont. Ct. Gen. Div.), multiply 1.5 by the amount calculated under a pro-rated set-off. In applying the 1.5 multiplier, the court assumes that 50 percent of a custodial parent’s childcare expenses are fixed costs.
The Federal Government is seeking to implement a single formula to, in its view, simplify quantum determinations and expedite support orders. There are many reasons why a monotone standard for shared custody is not appropriate. A recent decision of note on the issue of shared custody comes out of the Ontario Court of Appeal. Contino v. Leonelli-Contino [2003] O.J. No. 4128 (Ont. C.A.)(Q.L.) directly addresses the “formula” issue and supports the stance against a single formulaic approach.

Contino centered on the interpretation of shared custody provision found in Section 9 of the Federal Child Support Guidelines. Section 9 reads as follows:

Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 percent of the time over the course of a year, the amount of child support must be determined by taking into account

the amounts set out in the applicable tables for each of the spouses;

the increased costs of shared custody arrangements; and

the conditions, means, needs and other circumstances of each spouse and of any chid for whom support is sought.
The facts of Contino are as follows: the parties were married for ten years and had one child of the marriage. They initially entered into a separation agreement whereby they agreed to joint custody with primarily residence to be with the mother. The father paid child support in the amount of $500 per month. The amount of support remained consistent for several years until the mother brought an application to have support increased to match the table amount under the Guidelines. The order was granted and support was increased by $68. A few years later the child began spending an increasing amount of time with the father, to the proportion of 50 percent. The father then brought an application to have the child support reduced.

The motion judge found that there was a shared custody situation and reduced the amount of support to $100. Clear calculations or explanation were not provided in the decision. The mother appealed and the Divisional Court granted the appeal, finding that there were several errors in the reasons of motion judge. The Divisional Court followed the Supreme Court of Canada decision of Francis v. Baker [1999] 3 S.C.R. 250 and found that the presumption that the Guideline table amounts are in the best interest of the child and should be held as appropriate unless shown otherwise through “clear and compelling evidence” applied to section 9. In applying Francis v. Baker, supra, the Divisional Court held at paragraphs 16 and 17 of the decision:

In considering an application for deviation under any statutory exception a court must first:

make a presumption in favour of the Guidelines amount;

impose an onus on the party seeking a deviation to establish on “clear and compelling evidence” that the deviation is in the child’s best interest;

consider all the statutory factors noted in the section establishing a permitted deviation without providing pre-eminence to any factor;

deny any application for a deviation based merely upon invocation of the discretionary provision;

focus on the child’s actual circumstances and not perceived parental fairness considerations, such as balancing parental means.
To hold otherwise would lead to an inconsistent application of discretionary principles to the permitted deviations.

The Divisional Court found that there was not “clear and compelling evidence” that a deviation from the full Guideline amount was appropriate, despite the fact that the child was now living with the father over 40 percent of the time. The Court therefore restored the amount payable by the father to the full Guidelines amount.

Further appeal was taken by the father. The Court of Appeal disagreed with the approach taken by the Divisional Court. The Court of Appeal held that the language of section 9 does not support such a presumption, as it explained at paragraph 35:

The wording of s.9 does not start with a presumption that the amount determined under s.3 is to be paid by the person seeking an order under s.9; it instead states that the amount in the tables is to be taken into account. Nowhere in s.9 is the word "inappropriate" to be found, such as would signal an onus on a payor spouse to establish that a departure from the amount determined under s.3 is warranted. The Divisional Court erred in ignoring these significant differences in wording in the various sections. The Divisional Court's analysis of s.9 introduces a presumption not called for by the language of the section and one that is contrary to the plain wording of the provision and to principles of statutory interpretation.
The Court of Appeal identified that there are 3 specific considerations which must be taken into account under section 9. These include: the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought; the amounts set out in the tables for each of the spouses; and the increased costs of shared custody arrangements. The Court explained that:

The language of s.9 requires the court to determine child support "by taking into account" the three factors contained therein. This language, and the language of subsection (b) pertaining to increased costs of shared custody and subsection (c), "the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought", suggest an individualized, fact-specific approach to each case. [Para 45] (emphasis added)
The Court acknowledged that “courts across the country have struggled to develop an interpretation of s.9 of the Guidelines that promotes the Guideline objectives of ensuring consistent treatment of spouses and children and reducing conflict by making calculations of child support orders more objective.” [Para 50]. This is largely the reason why the Federal Government is contemplating stepping in and setting down a single formula for section 9 calculations. Whether a single formula is appropriate is a matter of great debate.

The B.C. Court recognized this issue in the decision of Green v. Green 2000 BCCA 310 at paragraph 34, wherein Prowse J.A. stated:

It is apparent from a review of the decided cases that the courts have not succeeded in finding a s.9 formula or formulas which can be applied in an equitable way in all cases. Section 9 is one of the provisions of the Guidelines which appears to recognize, particularly in ss.9(b) and (c), that the myriad of fact patterns which come before the courts require some room for the exercise of judicial discretion. Discretion is built into the section. This is not to say that formulas cannot be of assistance in applying s.9, or in testing the result, but only that a particular formula should not be regarded as definitive.
The Ontario Court of Appeal agreed that no formula can be definitive, but that some formula was necessary as a ‘starting point’ and that the set-off approach utilized for section 8 could be useful in this regard. The Court was adamant however that the Court “retains the discretion not to use a formula where it would lead to a result that is inconsistent with the objectives of the Guidelines and contrary to the best interests of the child.” The Court cited with approval James G. McLeod’s comments in his annotation to the Green case (2000 Carswell B.C. 1048) that “a court should not adopt a simplistic approach to save time if the effect is to provide inadequate support so that a payee parent has insufficient funds to meet a child’s needs.” Ultimately, the Court asserted section 9 decisions could not be made in the context of one formula alone as too many variations had to be considered. The Court asserted that the legislature was aware of this and this is evident in the construction of the provision.

For Mr. Contino, the Court utilized a set-off formula and applied a multiplier, arriving at a final figure of $215 payable by the father to the mother.

Shared custody often entails very different considerations than other custody arrangements. Two complete residences for the child must be maintained. It inevitably results in higher overall childcare costs. Neither parent can mitigate costs in the same manner as if the child (or children) maintained one primary residence. It can result in a normalization of incomes between the parents, although generally this is not the case. The more likely scenario is that the parent with the higher income ends up expending even more than they would for child support alone, especially with the single formula approach. Not only will the higher income parent have to pay a high Guideline amount, they will also have the full costs associated with maintaining a suitable residence and support system for the child themselves. In some cases, this may even work to discourage shared custody agreements.

Maintaining the Court’s ability to be flexible for section 9 situations is necessary. While there is no doubt a need to maintain consistency, reliability and speed in child support decisions, shared custody is a unique situation. One formula alone cannot address the multitude of factors that must be considered. A single method will work a tremendous injustice for many and the Federal Government should be cautious in its alterations.