If we share custody, will I have to pay support?

It depends. If your child is still a dependent and your former spouse/partner has primary physical residence of the child then you will have to pay child support.

However, if the time is shared, i.e. if your child spends at least 40% of his or her time with you then the amount of child support that you need to pay may be lowered.

Since the child is spending almost equal amounts of time with both you and your former spouse/partner then the expenses that the both of you may have, that are associated with taking care of your child, will be more or less the same and as a result you should not have to pay an excessive amount of support which could then result in a windfall gain to your former spouse/partner and undue hardship to yourself.

The relevant section to consider is s. 9 of the Child Support Guidelines (both federal and provincial) which has been interpreted by the case of Contino v. Leonelli-Contino [2005] 3 S.C.R. 217.

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). Since this amount has no presumptive value the court can change it and add to it based on the evidence presented under subsections (b) and (c).
• Subsection (b) refers to the increased costs that are associated with shared custody. In order to determine whether there are in fact any increased costs that need to be incorporated into the amount payable, the court will examine the budgets and actual expenditures of each parent.
• Lastly, 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 it is warranted. You should be aware of the fact that the courts seem to be 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.