Child Support under the Guidelines in Cases of Split and Shared Custody

Abstract

The Federal Child Support Guidelines which came into effect May 1, 1997 established a standard, two-step methodology for the calculation of child support. The first step is the determination of the table amount of support based on the payor's income and number of children. The second is the determination of whether there are any s.7 "add ons" with respect to special expenses. This paper reviews s. 8 (split custody) and s. 9 (shared custody) of the Guidelines and the emerging case law under each.

Split custody arises in situations where the parties have more than one child, and each parent has custody of one or more children. The cases involving split custody are relatively straightforward, and any complexity is the result of the complexity built into the Guidelines calculations themselves.

Shared custody is much more difficult. The standard calculation under the Guidelines is based upon a situation where it is assumed that one parent is primarily responsible for the expenditures relating to the support of one or more children. The question of whether to allow for an adjustment to guideline amounts in cases of increased access and shared custody, and if so, how to structure such an adjustment, raises complex and controversial policy choices. The case law is reviewed on two separate but interrelated interpretive issues raised by s. 9: first, the 40% time threshold issue, and second, the issue of assessment of the appropriate amount once the threshold into "shared custody" has been crossed. Defining shared custody by a certain percentage of time has a number of drawbacks. Courts appear, on the whole, to be taking a fairly cautious approach in determining whether the 40% threshold has been reached. The other s. 9 issue, of how to assess child support once a situation of shared custody has been established, will remain a difficult one even if the Guidelines are amended and the threshold changes to something like equal time. The author would favour an approach that allows a degree of judicial discretion to adjust the Guideline amounts to recognize the financial realities of the parties.

Keywords: child support, guidelines, splits custody, shared custody, 40% threshold