The newest development in the Family Law area arose through the recent Contino v. Leonelli-Contino decision, rendered on November 10, 2005.
Section 9 of the Federal Child Support Guidelines is the operating section in shared custody situations. It outlines two steps: The first is to meet a 40% threshold. This means that the child has to spend at least 40% of his or her time with either parent for the situation to be classified as one of shared custody. The second is to determine the appropriate amount of child support. The latter is the step that has, in the past, given the courts some trouble.
Prior to the Contino decision, the courts used several different approaches in setting the amount of child support in shared custody situations. The simple set-off method was the most popular. It essentially takes the Guideline amount at one parent’s income and the Guideline amount at the other parent’s income and sets the two off against each other. Any child related expenditures would then be apportioned and added to that set-off figure.
In Contino, the Supreme Court of Canada has now finally given some direction with respect to the appropriate amount of child support to be paid in shared custody situations.
One should remember that, as with all family law cases, each case is unique and must be decided on a case by case basis. However, the factors to be taken into account in each case are the same. The court defined the approach to take in each step, providing clarity to the lower courts in determining the proper support to be paid. In the end, Contino was ordered to pay $500.00 per month in child support, which is to be compared to the $128.00 per month that would have been the simple set-off amount and the $563.00 per month which was the amount of the support payment made by the father in the past.
The Supreme Court (J. Fish dissenting) arrived at its decision by working through the following factors stating that, while the simple set-off may be a good starting point, it cannot be the end of the inquiry:
1) Determine the Table amount for each parent based on their respective incomes;
2) Determine the income ratio of the parties, which is the percentage responsibility of each parent of the total child related expenditures; and
3) Take into consideration the ability of each parent to absorb the increased costs of shared parenting (keeping a room at two houses, clothes, toys, etc).
An additional factor in this specific case was that the mother had moved to a bigger house which move she felt was in the best interest of the child. The court held that it was reasonable for the mother to expect that she would continue to receive a monthly payment of $563.00 when she decided to buy the more expensive home. Taking all these factors into consideration, the court ordered that the father pay $500.00 per month for the support of his child.
There has been much discussion about this decision since it was rendered. Contino may have given predictability in the determination of child support in shared parenting situations, but, at the same time, the Supreme Court may have opened up a new controversy by confirming that the table amounts do not take into account any child related expenses incurred by the payor parent at any level of access. It will remain to be seen how this new awareness will play out in the “standard” 75/25 custody and access cases.
If you are, or will be, in a shared custody situation and wonder how this decision may affect you, please contact your lawyer.
Dated: February 2006