Shared Custody Regime – We Still Have A Long Way to Go…

In the May 2012 case of S (G.E.) v. C. (F.), Justice Walsh of the New Brunswick Court of Queen’s Bench dealt with, among other issues, the unclear threshold of Section 9 of the Federal Child Support Guidelines as created by the courts.

For the purposes of the case at bar, we will only analyze section 9 of the Federal Child Support Guidelines.

Background: Both parties in this matter are teachers earning $74,541.14 in 2012 (less union dues).  The parties are divorced and have joint custody of four children.  There was a long history of conflict between the parties which required a number of court proceedings.  The father was awarded day-to-day care of the children. Three of the children do not communicate with their mother.

The father brought a Motion to Change seeking:

  1. Contribution under s.7 of the Child Support Guidelines towards university costs for one child;
  2. An adjustment to the monthly amount paid by the mother towards arrears of the child support; and
  3. An adjustment of the mother’s child support, due to an increase in her income.

The mother responded, among other issues asking that;

  1. she has the day-to-day care of one of the four children at least 40% of the time for the purpose of Section 9 of the Child Support Guidelines. As such, the mother felt there should be a recalculation of her child support amount owing.

Among further rulings, the judge discussed “the so-called 40% rule”. The 40% rule is applicable where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40% of the time over the course of a year. As a result of this rule, child support is affected. This is considered a shared custody formula(s), which is set out in Section 9 of the Child Support Guidelines and in accordance with the principles and factors discussed in Contino v. Leonelli-Contino, 2005.

The judge advised that there is not a standard approach across Canada to what constitutes 40% of the time.  He refers to the case of M. (K.) v. M. (S.) 2011, as many courts have taken different approaches, stating:

with some courts counting hours and some days, some overnights and some school time and some looking at it holistically. When one couples that problem with the concern that a parent is withholding access or seeking more access in order to either fit within Section 9 or take oneself out of Section 9, one realizes that while the Guidelines have brought much predictability and stability to the awarding of child support, we still have a long way to go.

The judge stated that in his view, this determination is not just a simple time account exercise but that “assessment should be made by considering the broader context of the parenting arrangement.” It can be inferred from the case that the mother wanted the judge to conclude that given she has the day-to-day care of one of the children, that her child support payments should be reduced.  The judge stated that he was not convinced on the evidence presented by the mother that she has met the onus of demonstrating that she exercises a right of access to, or has physical custody of the child for not less than 40% of the time over the course of the year.

The judge adds that it is obvious to the Court that “the mother does have an agenda, to as much as possible wrestle [the child] away (or at least as much he will allow at his age) and set up her own support regime in regard to him.” The judge concludes by stating from the evidence it is clear the mother “cannot stand the thought of paying child support directly to the father, despite the absence of any cogent evidence that the father was wasting the sums that he did receive through garnishment.”

As such, the judge dismissed the mother’s claim for a determination of child support for the child based on Section 9 of the Child Support Guidelines.

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