Thursday, November 10, 2005

Child Support in Canada - "Days do Not Equal Dollars"

Leonelli-Contino and Contino

The Supreme Court of Canada today issued an important ruling on the application of the "40% Rule," as set out in Section 9 of the Federal Child Support Guidelines. This provision requires the Courts to consider a number of factors in establishing child support requirements where custody of children is shared, and a child resides with the support payor at least 40% of the time.

Where residency time is less than 40%, the Guidelines provide that specified table amounts are payable, based solely on the payor's income, the province of the children's primary residence and the number of children in the family.

Many support payors, noting the increased costs of providing for such residency, have argued that their support should automatically be reduced if a child resides with them for 40% or more of the time. This has led to some interesting questions including how the 40% should be calculated - does it include sleep time or daytime when a child is at school and not in either parent's direct care?

The Court's ruling clarifies the approach to be taken in determining support requirements in shared custody cases.

The Court held that no automatic reduction of support flows from reaching the 40% threshold - rather, all financial circumstances of the family are to be taken into account by a Court bearing in mind the aim of the Guidelines to provide appropriate resources and an adequate living standard for children in each of their parents' homes.

See the excerpt below from CTV News: News Staff

The Supreme Court of Canada has decided that 'days do not equal dollars' when it comes to child support.

In an 8-1 majority decision, the court decided that a divorced parent who spends more time with his or her children should not necessarily be able to automatically pay less child support.

The case involved two Ontario parents, Joseph Contino and Joanne Leonelli-Contino. They were married in 1982, had one son in 1986, separated in 1989 and were divorced in 1993. Under their separation agreement, the parents took joint custody of their son, Christopher. The boy lived primarily with Leonelli-Contino while the boy's father had access to him on alternate weekends and Thursday nights.

In 2000, when Contino's access was increased by more nights per month to accommodate his former wife's studies, an Ontario Family Court judge ruled Contino's child care payments should be reduced.

The judge decided the payments should be cut on the basis that Contino was caring for his son almost half the time.

That was later adjusted by further court decisions over the next five years, with Contino at one point paying a high of $688 a month and a low of $100 a month. Joanne disagreed with the decisions and took the case to the Supreme Court.

On Thursday, the Supreme Court decided that the family's entire financial context should be taken into account to ensure an adequate standard of living for both parental homes. "It is important to keep in mind the objectives of the [Federal Child Support] Guidelines, requiring a fair standard of support for the child and fair contributions from both parents," Justice Michel Bastarache wrote for the majority.

"Any attempt to apply strict formulae will fail to recognize the reality of various families.''

They decided a more reasonable support payment amount would be $500 a month.
Leonelli-Contino's lawyer, Deidre Smith, told Canada AM ahead of the decision that her client's position was that extra time with a child in itself should not be a reason to reduce support payments.

"If there had been a change in expenses, if he had assumed a larger portion of the child's hockey expenses or if he was now having to go out and get a bigger home to accommodate his child because his child was now spending more time, if he was doing more of the transportation, paying more of the school expenses -- then those types of things would make sense as to why there would be a change in the support arrangements," she explained.

"But in our thinking, time in and of itself shouldn't be a reason to change around the finances."

Smith said she was worried that if the courts decided that "days equal dollars," some parents would try to exploit the idea simply to reduce their payments.

"Moms are going to be suspicious if Dad is asking for extra time and the only reason he's asking for it is to reduce his support," she noted. She worried that that kind of thinking would not take into account about that amount of parenting would be best for the child.

Following the decision, Smith said she hopes the decision will help clarify the sometimes confusing Federal Child Support Guidelines. "It's an important case because it helps Canadians understand how to interpret the child-support guidelines," she said. "This issue has been bedevilling Canadians, judges and lawyers . . . across the country.

- Garry J. Wise, Toronto

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