On August 25, 2011 Sara Gilbert, whose rise to fame came pursuant to her role as the unruly teenage daughter on Roseanne, announced that after ten years together her relationship with Allison Adler was over. The couple currently have two children, a son Levi (aged 6 ½ ) and a daughter Sawyer (aged 4) and they have agreed to share custody.
The first question to ask is, do any provincial or federal statutes apply to same-sex couples? If Sara and Allison lived in Canada, the answer to said question would be, yes! Thankfully in 2004, the case of M. (M.) v. H. (J.) established that the definition of spouse as it applies to heterosexual couples is discriminatory and as such breaches s. 15 of the Charter of Rights and cannot be justified under s. 1 as a reasonable limitation. In addition, and pursuant to said case, the definition of “spouse” was redefined such that spouse means either of two persons who are married to one another.
So, following the decision in the above mentioned case Sara and Allison, if they were residents in Ontario, could look to the Family Law Act for guidance regarding resolution of their matrimonial matter. TheFamily Law Act applies to couples who have not entered into a legally binding marriage and, as such, are considered to be common law/cohabiting.
“Shared custody” in Ontario refers to a situation whereby each parent exercises a right of access to, or has physical custody of, a child for not less than forty percent of the time over the course of a year such that it seems as if the child is residing in two different homes and with both parents. When this is the case, child support obligations tend to differ. It becomes inequitable to require that only one parent pay full child support when reality dictates that the child is living with both parents who are incurring expenses relating to that child.
Therefore, the Child Support Guidelines created an innovative way of calculating child support in shared custody situations so that the amount that the payor-parent is required to contribute actually reflects the increased expenses that are being incurred by the recipient-parent.
To clarify, the Child Support Guidelines are a piece of legislation that dictates the quantum and duration of a child support obligation as well as the tables which assign specific monthly amounts based on the payor-parent’s annual income and the number of children to whom the obligation applies.
Pursuant to s. 9 of the Child Support Guidelines:
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 the child support order must be determined by taking into account:
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought
To clarify, a simple example will follow in order to illustrate how the above mentioned concept might apply:
Sara has an annual income of $50, 000.00 and Allison has an annual income of $75,000.00. There are no exceptional increased costs relating to the shared custody arrangement nor are there any exceptional conditions, means, needs or other circumstances that must be taken into account. Consequently, child support in a shared custody situation may be calculated as follows:
The table amount for Sara (income – $50,000.00 and 2 children) = $753.00
The table amount for Allison (income – $75,000.00 and 2 children) = $1098.00
Set off: $1,098/00 – $753.00 = $345.00
Allison would be required to pay $345.00 a month to Sara in child support.
Please note that this example is just that, and does not purport to include Allison’s and Sara’s actual incomes.