If we have shared custody, does anyone have to pay child support?

If the time is shared, i.e., if the child spends at least 40% of his or her time with an access parent then the amount of child support that the access parent needs to pay may be lowered. Since the child is spending almost equal amounts of time with both parents then the expenses that they may have, that are associated with taking care of the child, will be more or less the same and as a result they should not have to pay an excessive amount of support which could then result in a windfall gain to one parent and undue hardship to the other.

The relevant section to consider is s. 9 of the Child Support Guidelines (both federal and provincial) which has been interpreted by the Supreme Court of Canada. This case established a 2-step approach to determining child support in situations of shared custody.

The first step is to determine whether the 40% threshold has been met, and if it has, then the amount of support is decided by considering subsections (a), (b) and (c):

• Subsection (a) states that the starting point in figuring out the appropriate amount is a simple “set-off” whereby the amount payable is the difference between the Table amounts for each parent (as though each was seeking child support from the other). This amount may be varied or added to based on the evidence presented under subsections (b) and (c).
• Subsection (b) refers to the increased costs that are associated with shared custody. These costs are determined by examining the budgets and actual expenditures of each parent.
• Subsection (c) gives the court the power to consider the condition, means, needs and other circumstances of each parent and child and vary the amount payable where necessary.

It seems as though the courts are most concerned with the standard of living of the child involved and will probably try to award an amount that will allow the parents to maintain that standard of living.

You should be aware of the fact that establishing the 40% threshold requirement may be difficult as courts have been inconsistent with the factors used in order to make this determination. Some judges include weekends, holidays and overnight stays (i.e. the hours during which the child is sleeping) in the calculation of the 40% whereas others do not. So far, there is no bright-line rule dictating what is required in order to meet the threshold.