# Posts tagged ‘federal child support guidelines’

## How Base Child Support is Calculated – Video

Wednesday’s Video Clip: How Base Child Support is Calculated

In this video we discuss how the Child Support Table in the Guidelines sets out the amounts of support to be paid, depending on the “gross income” of the paying parent and the number of children that the support order covers. Gross income means before taxes and most other deductions. The amounts to be paid are based on the average amounts of money that parents at various income levels spend to raise a child.

In simple cases, the table alone will determine how much money will be paid. In more complicated cases, the table is used as the starting point. There is a different table for each province and territory.

Sometimes, a judge does not accept a parent’s statement of income. Instead the judge uses an amount of income that is reasonable based on things such as the parent’s work history, past income, and education. The judge will then apply the table to that income.

## How is Shared Custody Calculated? Daily? Hourly?

How is Shared Custody Calculated? Daily? Hourly?

Under the federal Child Support Guidelines, there are certain rules that apply specifically to calculating child support in cases where a “shared custody” arrangement is in place. The Guidelines define this as being those situations where a parent has access or physical custody of a child for “not less than 40 percent of the time over the course of the year”. (And note that the fact that parent with access newly hits that 40 percent mark does not mean that he or she automatically pays less child support; it means only that a court is required to take certain specified factors into account in setting support amounts in such cases).

But how is that 40 percent threshold properly determined? By counting days? Hours? Minutes?

A recent case called L. (L.) v. C. (M.) adds clarity to this precise question. The court described the problem it was being asked to consider this way:

The mother and father have both provided calendars that apply their interpretation of the access and custody order. The father, who calculates his time in days (overnights), concludes that his access time is over 40 per cent. The mother, who calculates in hours, concludes that the father’s access falls well below 40 per cent. Both parties are very aware that this 40 per cent threshold is significant. I have now calculated based on their assertions and my conclusions and clarification.

The court then turned to reviewing the process by which the 40 percent custody is to be evaluated. For one thing, it noted that the Guidelines are not clear on precisely how the calculation is to be realized, and there is no court-endorsed universal method. On the other hand, it is clear that the threshold is strict, and that a court is not entitled to “round up” in cases that are on the border.

Next, the court observed that if a “days”-based approach is used, then a parent with access must have the child in his or her care for 146 days per year. If the calculation is based on “hours”, then the 40 percent threshold lies at 3504 hours per year. The method used can make a big difference. The court wrote:

With the changes in support that can stem from proceeding under s. 9 [the Guideline’s “shared parenting” provision] and the strict setting of the 40 per cent threshold, this calculation can be extremely significant. At times, calculating in days versus hours makes just the difference that moves the access parent into a situation where they exercise 40 per cent access …. For this reason, applying the appropriate method of calculation is crucial.
The answer as to which approach to take, according to the court, may have to be determined case-by-case. The Guidelines do advocate for a flexible and robust consideration of the parents’ individual circumstances; in some (though not all) circumstances, units smaller than days may be the fairest method of determining whether the 40 percent threshold has been reached. This can include an hourly accounting of time in the right circumstances.

(And as an aside, it is important to note that the calculation is based on the time the child is in the care and control of the parent, including time spent with nannies, or at school or day care, and time that the child spends sleeping at the parent’s house, etc. It does not count that the parent is merely physically present with the child).

Here, the court used the hourly approach and determined that the child was in the mother’s custody 67.4 percent of the time, and was with the father 32.6 percent of the time. The “shared parenting” threshold of 40 percent was not met in this case.

For the full text of the decision, see:

L. (L.) v. C. (M.), 2013 ONSC 1801 http://canlii.ca/t/fwslt

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

## How Do You Arrange For Child Support To Be Paid in Ontario?

Wednesday’s Video Clip: How Do You Arrange For Child Support To Be Paid in Ontario?

Sometimes parents are able to work out child support payments on their own. Other times, they get help from a mediator, or a judge determines what the payments will be.

In this video, family lawyer Russell Alexander talks about how support payments can be made, the need for financial information and use of the child support guidelines. Written agreements are helpful and the need for separate or independent legal advice is also discussed.

## Even with Federal Guidelines, Spousal Support Amounts Are Never Certain

Even with Federal Guidelines, Spousal Support Amounts Are Never Certain

The obligation to pay spousal support can arise through several means, including negotiation between the parting spouses, or by way of a court order.   Either way, the amount and duration of support is dictated by a wide array of factors, and will vary from case to case.

As a means of bringing some consistency to the complex process of determining what support is appropriate, in Canada the federal Spousal Support Advisory Guidelines (the “Guidelines”) were formally issued in 2008.  These Guidelines were drafted by two respected Law Professors with the endorsement of the Department of Justice Canada, after consultation with stakeholders in the family law field.

However, it’s important to know that the Guidelines are not officially “law”.  Instead, they are merely informal guides that have only an advisory purpose; i.e. they provide suggestions as to the appropriate range of spousal support amounts and duration, taking into various criteria into consideration. The Executive Summary for the Guidelines articulates its objective:

“The Spousal Support Advisory Guidelines were developed to bring more certainty and predictability to the determination of spousal support under the federal Divorce Act. …The Guidelines are not legally binding and their adoption and use will be voluntary. They are intended as a practical tool to assist spouses, lawyers, mediators and judges in determining the amount and duration of spousal support in typical cases.”

To this end, the Guidelines impose a standardized set of rules and tables to assist in determining the appropriate level and duration of support in myriad scenarios.    The objective is to bring some much-needed certainty and consistency to the issue spousal support entitlements across Canada.

Nonetheless – and despite the Guideline’s existence and widespread use by those in the family law field – court-imposed spousal support orders can still be uneven across the country, sometimes defying traditional logic and the consistency that is supposed to form the underpinnings of the Guidelines in the first place.   This is sometimes the case even where a judge expressly refers to having used the Guidelines as a tool for making the proper support award.

Looking at Ontario, for example, there are instances in which courts have overtly purported to apply the Guidelines, but then have made awards that do not actually fit within them.   For example, in the Ontario Court of Appeal decision in Rioux v. Rioux, the parties had a 21-year marriage.   The husband earned about \$100,000 a year, while the wife (who was 48 years old) earned only about \$16,000.  At trial, the judge ordered the husband to pay the wife only about \$900 per month.   The wife appealed, but asked for only \$1,500, which was a modest amount in the circumstances and not in step with the Guidelines.  The appeal court found this amount to be “reasonable” and “well within the spousal support guidelines”; in reality, this was simply an inaccurate conclusion on the court’s part, no matter how the Guidelines formula was applied.  Moreover, the duration of the support awarded was equally puzzling:  the Guidelines dictated indefinite support from the husband in these circumstances, and yet the Court awarded the wife only five years’ worth (subject to a possible review), citing the fact that the wife was “relatively young” and was working on gaining self-sufficiency.

In another Court of Appeal decision called Catsoudas v. Catsoudas, the appeal court was asked to review the trial judge’s order – which was given without any articulated reasons – to the effect that the husband should pay \$1,000 per month to the wife.  It was a 22-year traditional marriage, with the husband earning \$110,000 and the wife earning \$42,000.  The husband had appealed the trial award, on the basis that the \$1,000 was “overly generous” in light of the other payments he had to make as part of the divorce, for equalization and child support (these amounted to \$1,300, which was also less than he should have been paying under the circumstances).  The Court of Appeal upheld the original award, stating that it was not “outside the range of what would be appropriate, particularly taking account of the spousal support guidelines”.   In fact, even taking his other support obligations into account, the stipulated \$1,000 was below the low end of the Guidelines’ range.   Rather, in these circumstances involving a long-term marriage – and in light of the Guidelines’ formula – the situation called for support in the mid-to-high-end range of closer to \$2,000 per month.

Certainly, there are some out-of-the-ordinary cases and aberrant outcomes.   Even court-ordered spousal support awards can vary broadly across the country, since they still involve an element of subjective assessment and consideration of the fact that every family law case is unique.   Therefore – and even with the theoretical certainty of the Spousal Support Guidelines as a tool — separating and divorcing spouses should ensure they each get competent legal advice whenever spousal support becomes an issue.

For the full text of the decisions, see:

Rioux v. Rioux, 2009 ONCA 569

Catsoudas v. Catsoudas, 2009 ONCA 706