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The Miller v. Volk 2009 decision of the Honourable Justice Blishen concerns the application of Section 9 of the Federal Child Support Guidelines (Guidelines) and a shared parenting regime.

The parties entered into a separation agreement in 2003, which provided that the two children of the marriage reside equal time with each parent. The parties had agreed that the Respondent, Ms. Volk pay the Applicant, Mr. Miller child support based on the parties respective incomes at the time of the agreement using the set off or subtraction method. The Agreement between the parties formed part of the Divorce Order dated April 23, 2003.

Mr. Miller argued however, that there has been a material change in circumstances, namely that Ms. Volk’s income has significantly increased and this factor should be accounted for when determining the appropriate quantum of child support payable. Ms. Volk accepted that there was an increase to her income, however argued that her contribution to the children’s expenses for clothing, footwear and extracurricular activities etc, should be considered having regard to all of the factors in Section 9 of the Guidelines. They are as follow:

Section 9: where a spouse has access or 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 order must be determined by taking into account the following:

  1. the amounts set out in the applicable tables for each of the spouses;
  2. the increase costs of the shared custody arrangements and;
  3. the conditions, means, needs and other circumstance of each spouse and of any child for whom the support is sought.

The Supreme Court of Canada in Contino v. Leonelli-Contio analyzed section 9 of the Guidelines and emphasized that the set off approach is only a starting point and the weight of each factor under section 9 will vary according to the particular facts of each case.

Taking into account the Contino analysis as well as the parties Separation Agreement, Justice Blishen found that the set off formula should continue, however she also considered other factors in determining the appropriate amount of support. Justice Blishen took into account the following factors:

  • The income disparity between the parties and two households,
  • Ms. Volk’s partner’s contribution to her household,
  • Mr. Miller’s partner’s pregnancy,
  • Mr. Miller’s loss of his employment, and
  • The parties’ respective net worths.

It is important to note that generally parties cannot make an agreement for children that contract out of the Guidelines, however in this circumstance the agreement between the parties did not disadvantage the children, therefore in such circumstances the court may not interfere with the parties arrangements.

To conclude, Justice Blishen ordered that the set off approach continue. Ms. Volk was ordered to pay 86 percent of the children’s expenses and Mr. Miller was ordered to pay 14 percent based on their respective incomes.