In most cases, the parent who does not have a primary residence of the child(ren) will be the payor parent (i.e. they will make the basic monthly child support payment to the other parent).
One parent has a primary residence of the child(ren) when the child(ren) spends more than 60% of their time with that parent.
However, a set-off method will often be used for child support if the child(ren) spends approximately the same amount of time with each parent. The set-off method is often used when there is a shared custody arrangement wherein the child(ren) spends at least 40% of their time with one parent and less than 60% of the time with the other parent.
Shared custody as outlined in Section 9 of the Federal Child Support Guidelines and has been reviewed and interpreted by the Supreme Court of Canada in the case of Contino v Leonelli – Contino, 2005 SCR 217. In determining the child support to be paid in a shared custody arrangement, a two-step test now exists:
- It must be established that the child(ren) resides with one parent for not less than 40% of the time over the course of a year. There is no bright-line rule for how this will be determined and often, can be quite difficult to prove;
- Once it has been proven that the child(ren) spend not less than 40% of their time with either parent, the court will consider three factors when determining the amount of basic monthly child support payable:
- The basic monthly child support amounts as set out in the Guidelines for each of the spouses. The amount of child support payable is often the difference between how much each parent would owe the other in basic monthly child support if one parent had the child(ren) in their care for more than 60% of the time. This is the basic “set-off” amount.
Example: If, the father would be obligated under the Federal Child Support Guidelines and/or the Child Support Guidelines to pay basic child support in the amount of $450.00 per month based on his annual income and the number of children; and if, for example, the mother would be required to pay basic child support in the amount of $400.00 per month based on her income and the number of children, the basic “set-off” amount would be $50.00 (i.e. $450-$400= $50). Therefore, the father would have to pay the mother basic child support in the amount of $50.00 per month as opposed to the full amount as otherwise indicated by the applicable Guidelines.
- The increased costs of shared custody arrangements. This will be assessed by reviewing the budgets and actual expenditures of each parent.
- The conditions, means, needs, and other circumstances of each spouse and of any child for whom support is sought. This factor may require the court to make changes to the set-off amount of child support payable where the court finds it to be necessary.
For the full decision, please see: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2244/index.do