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             On November 10, 2005 the Supreme Court of Canada released their reasons in Contino v. Leonelli-Contino, 2005 SCC 63, which involved an analysis of the shared parenting provision, s. 9 of the Federal Child Support Guidelines, SOR/97-175. A shared parenting arrangement occurs where a parent has access or physical custody of a child at least 40 percent of the time over a year, and in such circumstances the Federal Parliament believed that a departure from the standard formulas in ss. 3 and 8 was warranted. Section 9 reads as follows: 

            9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared custody arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

 Prior to Contino almost everyone could agree that the starting point was to consider a set off of amounts payable to each parent by the other while the child was in a parent’s care, but there was uncertainty as to the formula to be used. In Contino the Ontario Court of Appeal used a straight set off with a multiplier and top up for variable expenses. In Slade v. Slade, [2001] N.J. No. 5 (C.A.) the Newfoundland Court of Appeal applied a straight set off. In Green v. Green, [2000] B.C.J. No. 1001 (C.A.) the British Columbia Court of Appeal reviewed the legislation and the case law, threw up their arms, and simply applied a 25% discount and topped it up with a portion of the private school fees. However, in some cases the court used its discretion without any formula at all: see Henke v. Henke (2000), 3 R.F.L. (5^th) 226 (Sask. Q.B.).

 Furthermore, there was uncertainty in determining how to weigh such factors as a parent’s fixed and variable costs, the standard of living experienced by the child in each household, and each parent’s ability to pay. Section 9 gives the Court considerable discretion but how that discretion was to be exercised was unclear.

             It was also presumed that in almost every case of shared parenting the amount of child support payable by the payor parent would be reduced. That myth was turned upside down by the Supreme Court of Canada in its 8 to 1 decision. 

Whether shared parenting will result in a reduction of support is a factual inquiry, based on the particular facts and circumstances of the parties. The reality of shared parenting is that it will almost always result in increased total costs for the support of the child. Moreover, the increase in days by the payor parent does not necessarily, and in most case will not, coincide with a decrease in actual costs by the recipient parent. Both parents will have costs associated with housing, food and transportation for the child. Variable costs such as recreation and entertainment will almost certainly increase for both parents. Finally, once the proportionate share of the total costs of support is allocated fairly between the parents, there still may be compelling reasons why the support payable should be higher or lower, based on the means, needs and other circumstances of the parents and the child. 

How should the court address this?

             What Contino sets out is a specific, fact driven approach to determining child support in shared custodial arrangements. First, the court is to consider a straight set off, and then determine if that is reasonable in light of the factors set out in ss. 9(b) and 9(c). Second, the court is to consider the increased costs of the shared parenting arrangement, and to determine on a proportionate basis how those additional costs are to be share between the parents. Third, the court is to consider the resources and needs of both parents and the child, to set an approximately similar standard of living for the child in each household. 

            Contino is very much in line with the recommendations of the federal Department of Justice in “Children Come First: A Report to Parliament Reviewing the Provisions and Operation of the Federal Child Support Guidelines, Vol. 2” (Ottawa: Her Majesty the Queen in Right of Canada, 2002). The Department of Justice recommended the use of a basic set off based on the table values for the total number of children in the shared custody arrangement, and the court may depart from that presumptive formula where the use of the formula would be inappropriate.

The Facts and the Lower Courts 

            The facts of this case are as follows. Joseph Contino and Joanne Leonelli-Contino had one child of their marriage, Christopher, who was born in 1986. They entered a separation agreement in 1992 that provided for joint custody of Christopher, with primary care to Joanne and liberal access to Joseph. Under the agreement Joseph paid $500 a month for child support which was subject to a cost of living adjustment. In 1998 Joanne applied for Guideline child support which was settled by Joseph agreeing to pay $563 per month based on an annual income of $68,712. By 1999 Joseph’s income rose to $83,527.58. At the same time Joanne’s income was $53,292. In 2000 Joanne began taking night courses so Joseph took Christopher for an extra night each week. Christopher was now spending 50% of his time with Joseph. Joseph asked for a reduction in child support based on s. 9, and when Joanne refused, he brought an application in March, 2001 under s. 9. Each party attributed 50% of their fixed and variable costs to Christopher, with Joseph attributing $1,916.95 and Joanne attributing $1,814.00 to Christopher. 

            In the Ontario Superior Court of Justice (Unified Family Court) Rogers J. ordered a reduction of Joseph’s child support to $100 per month based on a pro-rated set off plus multiplier. Since Joseph’s income was $87,000 his child support payable to Joanne was $688 a month and since Joanne’s income was $68,082 her child support to Joseph was $560 a month; the one set off against the other left a difference of $128, half of which was $64, and grossed up by 1.5 was $96, or roundly, $100. Joanne appealed. 

            On appeal the Ontario Superior Court (Divisional Court) found that Rogers J. failed to consider both ss. 9(b) and 9(c), and without proper evidence of a reason to deviate from the presumptive table amount the Court was compelled to order Joseph to pay $688 a month to Joanne for Christopher’s support. Joseph appealed.

             On appeal to the Ontario Court of Appeal Weiler and Rosenberg JJ.A. held that once the 40% threshold was reached the presumptive table amounts did not apply, and s. 9 then required the court to determine the proper amount of child support based on all three factors set out in ss. 9(a), 9(b) and 9(c). A straight set off was a good starting point, but the court would need to consider the factors in ss. 9(b) and 9(c). Under s. 9(b) the Court held that it must consider the increased costs of a shared parenting arrangement, which should be shared between the parents. While such increased costs should be established by the evidence, in the absence of evidence, the court should make a common sense assumption and use a multiplier. Under s. 9(c) the court should also consider the actual situation of the parents and child to ensure a comparable standard of living for the child in both households. The Court of Appeal adopted a simple set off with a multiplier of 1.676 based on Joanne’s accommodation costs of 67.6% of her fixed costs. After performing some mathematical ministrations Weiler and Rosenberg JJ.A. held that Joseph was to pay Joanne $399.61 for Christopher’s support. 

The Supreme Court of Canada           

            Justice Bastarache for 8 of the 9 Justices of the Supreme Court of Canada held that the starting point is for a court to consider all three of the listed factors, conjunctively, once the 40% threshold had been met, with an emphasis on flexibility and fairness and according to the particular facts of the case. 

9(a): Set Off Calculation

 First, the court must take into account the financial situation of each parent. The court must perform a set off of the table amounts for each parent. However, a simple set off is only the starting point for the analysis. A court should depart from the set off if it is inappropriate in light of the factors outlined in ss. 9(b) and 9(c). So the set off amount must be followed by an examination of the recipient parent’s ongoing ability to meet the child’s needs particularly in light of fixed costs such as housing, food and transportation. Bastarache J. adopts the simple set off. He rejects the pro-rated set off because it disproportionately impacts on the lower income parent. 

            9(b): Increased Costs of Shared Parenting

             Second, the court must take into account that the total cost of raising a child in a shared custody situation may be higher than in a sole custody situation. Generally, there will be duplication of certain costs such as housing, food and transportation from the child living in two households. So, all of a payor parent’s costs should be considered as well as that of the recipient parent. However, this is factually driven. A change in the amount of time a payor parent spends with a child does not necessary translate in a proportionate increase in the payor’s costs, as one parent might simply take on a larger financial burden than the other. The purpose of the s. 9(b) inquiry is to review the payor’s circumstances, determine both fixed and variable costs and allocate to the payor parent his/her proportionate share of the total costs.

             9(c): Conditions, Means, Needs and Other Circumstances

             Looking at the recipient parent it is equally clear that increased access by the payor parent does not reduce the costs of the recipient parent. The third step is for the court to assess the resources and needs of both parents and the child, to determine the standard of living for the child in each household, and to allocate support to ensure a similar standard of living for the child in each household, subject only the party’s financial means and circumstances. As Bastarache J. points out, it is possible for the recipient parent’s fixed costs to remain unchanged and her variable costs to have been only marginally reduced. This analysis too is very much factually driven.

             Bastarache J’s analysis requires evidence from the parties as to the payor’s costs and the recipient’s conditions, means, needs and other circumstances. He rejects the Court of Appeal’s “common sense” approach and the application of a “multiplier” to account for fixed costs on the basis that it leads to asymmetrical treatment of each parent’s fixed and duplicated costs, such as housing costs. The parties must provide evidence on this, most likely through the use of financial statements and child expense budgets.

             Under the broad discretion granted to the court under s. 9(c) the court may also consider special and extraordinary expenses, which would normally fall under s. 7, as a direct consideration under s. 9. The result is that it may be advantageous for a payor to take on a larger portion of s. 7 expenses when calculating under ss. 9(b) and 9(c).

             As a result of this analysis, and mindful that this was an application to vary a longstanding child support regime, the Supreme Court of Canada refused to change the existing child support arrangement at all.

 Under s. 9(a) the set off was $128, based on Joseph’s income of $87,315 for child support of $688 per month and Joanne’s income of $68,082 for child support of $560.

Under s. 9(b) Joseph’s expense for Christopher were $1,814 and Joanne’s were $1,916.95, and based on the ratio between them of 56:44, Joseph should be responsible for 56% of the total shared parenting costs or $2,089.33 and Joanne for 44% or $1,641.62. Since Joseph already pays $1,814, he must transfer to Joanne the sum of $275.33. Upon review of the evidence Bastarache J. found no evidence that the shared parenting arrangement has resulted in a decrease of Joanne’s fixed or variable costs, nor evidence that the extra time devoted to Christopher has resulted in any increase in Joseph’s actual expenses.

Under s. 9(c) the Court assessed the means, needs and other circumstances of the parents and Christopher. Joseph’s net worth is $255,750 and Joanne’s is $190,651, for a differential of $65,099, so Joseph was able to make or continue child support payments without hardship. Furthermore, this was a variation application from a longstanding arrangement. Joseph was required to pay to Joanne the sum of $500 per month for Christopher’s support.

For further information please do not hesitate to contract the author of this Article, Robert Omura