by Mark Demas
Calculating child support is usually pretty straight forward when one parent is the primary parent – determine income, number of children, then look it up in the guidelines. However, when you are in a shared parenting arrangement, child support is governed by section 9 of the Federal Child Support Guidelines, if you are married, or section 9 of the Alberta Child Support Guidelines, if you are not. Shared parenting occurs when each parent has the children between 40% and 60% of the time.
Section 9 includes three separate considerations that a court must consider in determining the appropriate amount of child support payable. Summarized, those three factors are as follows:
9(a) the difference between the amount of child support payable by each party to the other if the other were to have primary care of the children (defined as having parenting time over 60% of the time);
(b) any additional costs associated with a shared parenting arrangement; and
(c) the condition, means, needs and other circumstances of each party and of the children.
Historically, lawyers and judges have generally calculated the child support payable using the section 9(a) “straight set-off" approach. This because it is an objective mathematical calculation. Conversely, the factors in sections 9(b) and (c) are subjective in nature. However, recently courts are becoming more and more careful to ensure that they follow all three of the mandatory legislative provisions in their consideration of the appropriate amount of child support payable in shared parenting. This has recently been reinforced by the Alberta Court of Appeal in its decision of MacDonald v. Brodoff, 2020 ABCA 246. In MacDonald the Court of Appeal confirmed that courts should demand more information in relation to sections 9(b) and (c) when the evidence filed is deficient.
What does this mean for you? If you are in a shared parenting arrangement and are proceeding to court on the issue of the appropriate amount of child support payable you must ensure that you include proper and fulsome evidence in order for the court to be in a position to assess the sections 9(b) and (c) factors or you risk the court directing you to do so before it will make a decision, or having the court make a decision that is potentially not in your favour absent that information.
So, what kind of additional evidence is needed? In MacDonald, the Court of Appeal said the following at paragraphs 14 and 15:
[14] Section 9(b) examines the total cost of raising the children in a shared parenting arrangement (where many expenses are duplicated) as compared to one parent having primary care. This is achieved through examination of the budgets and actual expenditures of both parents toward care of the children. The intent is to identify all of each parent’s child care expenses and compare that amount to that parent’s Guidelines Table amount of support.
[15] The analysis then moves to consider the factors under s 9(c): the condition, means and needs of each parent and child for whom support is sought. Courts are conferred broad discretion in considering these factors. The analysis is contextual and highly fact-dependent. Courts are alive to the standard of living the child experiences in each household and “the ability of each parent to absorb the costs required to maintain the appropriate standard of living in the circumstances”.
The goal under section 9(b) is to apportion actual expenses between the parents in accordance with their respective incomes. The goal under section 9(c) is to make every effort to ensure there is not a great disparity for the children in their standard of living in each home.
In reiterating the importance of the additional evidence required in order for a court to satisfy its duty to consider all of the section 9 factors, the Court of Appeal in MacDonald stated:
[16] The Supreme Court of Canada in Contino underscored the need for a robust financial record, including sufficient evidence to determine Guideline income and the resultant Table amount of support payable by each parent, financial statements, and detailed budgets delineating child related expenses, including special or extraordinary s 7 expenses. The Supreme Court of Canada implored courts to demand further financial information if it is deficient: Contino at para 57.
Given this reasserted approach by the Court to examine sections 9(b) and (c) in its analysis of the appropriate amount of child support payable, rather than simply stopping with the section 9(a) straight set-off amount, a party is now faced with additional costs in order to put together the “robust” evidence demanded by the Court.
It is important to note that, given the subjective nature of sections 9 (b) and (c), parties are free to arrive at their own agreed upon amount of child support, if they share parenting, that departs from the section 9(a) amount only. Similarly, the parties are free to agree to the section 9(a) straight set-off approach. The Court notes that family lawyers and litigants should be cautious in simply adopting a straight set-off approach and that the parties should at least consider the following factors:
- Is there significant income disparity between the parties?
- Is there an obvious difference in living standards between the parties?
- Is one party clearly bearing the majority of the child expenses such as school fees, clothing, and extra-curricular activities that fall outside of section 7 expenses?
In our experience, any adjustments a court may make to the section 9(a) straight set-off amount is generally not significant, if any adjustments are made at all. As a result, often it is not worth the additional cost to proceed with a court application in an effort to have an amount of child support ordered that differs from the straight set-off amount. This applies to both parties, who each have an equal duty to advance that additional evidence. To be clear, from a cost benefit analysis perspective, it may make sense to simply agree to apply the straight set-off amount only rather than be put to the cost of collecting, organizing and formalizing the robust evidence demanded and then paying your lawyer to make the argument in court.
Our lawyers are experienced in making these arguments and dealing with the complexity of section 9 factors. Contact us today to set up a consult with one of our experienced divorce and family lawyers.