British Columbia Family Law Blog

In the recent British Columbia Court of Appeal child custody and child support decision concerning a British Columbia family law case in Maultsaid v. Blair 2009 B.C.J. 467, our highest Provincial Court dealt with a situation where the parties had custody and guardianship of 2 children ages 14 and 16.  Up until September 2006, the children had resided primarily with the mother and the father had paid child support.  However, in September of 2006, the Court ordered a change in the primary residence of the two children such that they lived with their father and the mother was granted specified access.  For some reason, no order was made changing the child support obligations.  In June 2007, the father applied for cancellation of his support obligations effective July 2006 and sought support to be paid by the mother effective September 2006 when he got primary residence.

The trial judge had terminated the father’s obligation as of September 6, 2006, but applying s. 9 of the Child Support Guidelines, which is a section that allows for a departure from the Guidelines if the parties share care and control of the children and one of the parties has the children more than 40% of the time per calendar year.  The motions judge dismissed the application to reduce the father’s obligation or to cancel the child support arrears although the children were residing primarily with him.

An issue in the appeal was the father’s argument that the mother had access less than 40% of the year and there was no basis for applying s. 9 of the Guidelines and as such the mother should pay the full Guideline support based on her income to him has the primary resident parent.

The BC Court of Appeal held that the motions judge had erred in concluding that the children’s school time was neutral in the calculation of parents’ access.  Given that the access Order specified the time in which the mother’s access started and ended, the mother had no right to claim access to the children for the period of time that they were in school.  The Court of Appeal also felt there was a mistake by the motions judge to refer to the joint custodial relationship or to the mother’s former status as the primary residential parent.  In adding up the access time and assessing it on a calendar year basis, it was found she did not meet the criteria of having the children with her 40% of the time or more per calendar year and as such, ongoing child support was ordered against the mother commencing December 2007.  In addition, the arrears were cancelled.

[19]           This case is yet another example of the difficulties presented by s. 9 of the Guidelines.  Many judges have written of the potential difficulties this section presents for children in the time threshold it establishes, and the difficulties presented to the courts in its application when faced with different methods for making that determination.  I had occasion to address this issue in Berry v. Hart, a case in which the access order did not specify a precise access schedule but rather described access in terms of the father’s work schedule, which varied with times he was at sea.  In Berry v. Hart, one could not say from the order whether, in the terms of s. 9, the father had, or had not, a 40 per cent or more “right of access” and so the question was under the second arm of s. 9 -- “physical custody” where the calculation is even more precarious than when spelled out by a court order in a way that permits determination of the question in relation to “right of access”.  In Berry, the difference in calculation between the parties as to the amount of time the father had physical custody was very close, with even Ms. Hart accepting Mr. Berry was within a hair of 40 per cent.  The range presented by the parties was between 39.37 per cent (Ms. Hart) and 41 per cent (Mr. Berry).  I wrote, concerning time recording as it may be the basis for a submission as to whether the threshold was met in those circumstances:

[9]        One must also ask, considering that this approach may satisfy only the law of unintended consequences, whether the minutiae of such record keeping really determines whether s. 9 of the Guidelines applies.  Rarely can anything be measured with precision.  Even science recognizes that all measurements are subject to a margin of error.

[10]      In my view the issue is a matter of judgment not amenable to simply a time accounting exercise.  I consider that in determining whether the threshold level for application of s. 9 is met the question is whether the paying parent spends such a sizeable percentage of time with a child or children that, on any reasonable view of the evidence and considering the advantage that may accrue to a child in spending the occasional additional day, part day or hour with a parent, one can say reasonably that the 40 percent or more level is achieved.  It follows, in my view, that a court may assess child-parent time as meeting the s. 9 criteria without a tight accounting.  That assessment should be made by considering the broader context of the parenting arrangement.  It perhaps bears mentioning, further, that simply finding that a parental regime comes within s. 9 does not compel an automatic reduction in child support.  That determination must be made considering all of the criteria in ss. (a) to (c) of s. 9.

[20]           With respect I have come to the conclusion the judge in this case erred in principle in holding as she did that the school time was neutral in the calculation of the time the parents have access.  I take it as axiomatic that where an access order spells out the time at which the access starts and ends, and there is no agreement that could be said to alter the terms of the order, the access parent does not have, in the language of s. 9 “a right to access” beyond that time.  That is, it cannot be counted to the benefit of the access parent seeking to reach the 40 per cent level so as to move into the area of the court’s discretion to relieve against payment of all or a portion of the Guidelines amount. 

[21]           Nor, in my view, in considering the application of s. 9 is it correct to refer to the former living arrangements as a circumstance that may affect the application of the section as was done here in paragraph 80 to which I have referred, or the fact of joint guardianship or custody which is not a criteria for the application of s. 9.  The question is quantitative as applied to one of two aspects of the relationship between the child and the parent – access or physical custody.  Although courts have bemoaned the imprecision of the section and expressed concern over the consequences for children of the application of the section in certain circumstances, we are not free to disregard the language enacted by Parliament, or to set as criteria for its application aspects of the parties’ responsibility for the children not found in the Guidelines.