Calculating the amount of child support owed will differ if you and your former partner are sharing custody. The law in Ontario provides that shared custody exists where a parent exercises access or has physical custody for no less than 40 percent of the time over the course of a year. This works out to be 146 days, or 3504 hours in one year. In these cases, the Federal Child Support Guidelines permit a court to deviate from the normal guidelines.
Deciding whether this 40% threshold has been met can be a challenge. Some judges prefer a strict mathematical approach and count each parent’s custody or access by the hour, other judges prefer a more functional approach. To complicate the issue further, a parent who has access for part of the day (such as midweek evening access), doesn’t get credit for the full day in determining whether shared custody exists.
Once the 40% threshold is met, however, there is no exact science to determine the amount of child support owed. Meeting the threshold merely allows the court to deviate from the Child Support Guidelines. For example, if one parent meets the 40% threshold, and the other parent has the child for 60% of the time, it should not be assumed that the parent who has the children 60% of the time necessarily has higher costs than the parent who has established that he or she has custody 40% of the time.
The court will consider the amounts set forth in Section 9 of the Federal Child Support Guidelines, the increased costs of shared custody, and the conditions, means, needs and other circumstances of each spouse and of the children. Section 9 promotes flexibility and fairness and leaves discretion with the judge to consider the circumstances. After weighing the evidence, the court could ultimately decide that no deviation is necessary and order an amount of child support pursuant to the guidelines – but when shared custody exists the court can order an amount different than prescribed in the guidelines.
It is worth noting that the Supreme Court of Canada has determined that a child should not suffer a noticeable decline in his or her standard of living from a change in the parenting regime. In other words, if there is a change in custody resulting in a calculation warranting shared custody, the court will prevent a drastic reduction in child support being paid.
Determining the appropriate child support amount when shared parenting is at play can be challenging. If you think you meet this 40% threshold, speak to one of the experienced lawyers at Gelman and Associates to see if you might qualify for a reduction in child support.