Upon separation in 1992, the father and the mother maintained joint custody of their son, whose daily residence was with the mother. The income of the father was $87,000/year and the mother $68,000. Nine years after separation the father applied for a reduction in child support payments pursuant to s. 9 of the Federal Child Support Guidelines, on the basis that he and the mother were now sharing custody. The motions judge agreed, and reduced child support to $100/month. The Divisional Court set aside the decision and ordered the father to pay the full table amount of $688/month. The Court of Appeal reduced that amount to $399 after consideration of s. 9. The mother appealed to the Supreme Court of Canada.
- Should the child support amount be varied?
- If so, by what amount?
Bastarache, writing for the majority, considered each part of s. 9 in turn.
- s. 9(a): the amounts set out in the applicable tables for each of the spouses
- Under s. 9(a), the court is required to take the financial situations of both parents into account
- Start with the set off (the difference between the table amounts for the paying parent and the receiving parent)
- s. 9(b): the increased costs of shared custody arrangements
- This section recognizes that the total cost of raising children may be greater in shared custody situations then sole custody situations.
- Consider the increased costs of the shared custody arrangement (look to budgets, how parents have shared the costs that they have), and the conditions, means, needs and other circumstances of each spouse and the kids.
- A court should look at all the expenses of both parents under s. 9(b), not just the additional expenses resulting from an increase in access, nor just the variable or fixed expenses, nor just the expenses of the recipient parent.
- s. 9(c): the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought
- Analyze the resources each parent has and the standards of living in each household. Best interests of the child is still the primary factor; the court does not want the kids to be moving from have to have-not households. If one spouse is close to subsistence, this militates towards the full table amount.
- As the term "household" is used, the incomes and resources of new partners in each household would presumably be relevant.
- Distinguish between initial orders or agreements and variations
- A variation will raise different s. 9 issues than an initial order due to a recipient parent having incurred expenses based on legitimate expectations about support payments.
Bastarache states there is no presumption in favour of the full table amount, nor is there a presumption in favour of reduction. He also warns against the "cliff effect" - a situation where a slight increase in access (such as from 39-40%) results in a massive drop off in support. Section 9 should be interpreted so as to avoid such effects which may encourage custodial parents to prevent access beyond a certain threshold.
Applying this to the case at bar, the set-off starting point is $128/month, but considerations under s. 9(c) require this to be adjusted; the wife bought a house relying on support payments similar to those she had been receiving and a reduction of this amount would be unfair. He concludes that a payment of $500/month is appropriate, having regard to all the circumstance.
Procedure for dealing with a claim under s. 9 of the Federal Child Support Guidelines.