Shared custody

The amount of support shown in the table is ordered only when the parent with custody has the child most of the time. The more time the parent without custody spends with their child, the more of the ordinary expenses of raising the child they are assumed to be paying.

If each parent has the child at least 40% of the time, the Guidelines say there is “shared custody”. When there is shared custody, the amount of support paid to the parent with custody might be less than the amount set out in the table. Shared custody only refers to the amount of time spent with the child. It has nothing to do with which parent has the authority to make decisions about the child. It is not the same as “joint custody”.

The Guidelines do not tell the judge how to figure out how much time is spent with each parent. For example, whether time in school is time with a parent, whether it is the number of hours, days, overnight stays, or meals that are counted, or whether an overnight stay counts as one day or two days.

Different judges have counted time in different ways. But judges do agree that it is up to the parent who claims they have shared custody to show that the child is with him or her at least 40% of the time. Judges also agree that what counts is the actual time the child spends with each parent and not the arrangement described in an agreement or court order.

If the judge finds that a child spends at least 40% of their time with the parent who pays support, that changes the way the amount of support is figured out. Then the judge will look at the gross income of each parent and the amount of time the child spends with each parent.

The judge can also look at the circumstances of each parent. For example, one parent might live with a new spouse who shares expenses, or they might have other dependants to support. The judge can consider this information when deciding how much support should be paid.

The Guidelines do not provide a formula for setting the amount of support in these circumstances. Different judges have used different methods. When a child spends a large amount of time with each parent, this can add to the costs of the paying parent without significantly reducing the costs of the parent who has custody. Each parent has to provide shelter for the child. It is difficult for the child to pack up all their belongings when going from one parent to the other. So, each
parent may need to have things like bedding, pyjamas, toys and games, and clothes. There may also be extra transportation costs. Judges are to consider these extra costs when they set support amounts for shared custody.

These are some of the things that judges consider when deciding how much support should be paid when each parent has the child at least 40% of the time. The amount of time a child spends with each parent can greatly affect the amount of child support. It is important that parents think about this when they are scheduling time with their children. It is difficult to know in advance how a judge will deal with the questions raised by shared custody. So, it is a good idea to get advice from a lawyer first.

Split custody

Sometimes when parents with more than one child separate, one or more of the children will live with each parent. When this happens, child support depends on the income of both parents. How much support each parent would owe for any children living with the other parent is figured out according to the Guidelines. The parent who owes the higher amount must pay the difference between the two amounts to the other parent.

Take the example of one parent with custody of two children and an income of $25,000, and the other parent with custody of one child and an income of $45,000. According to the table, the parent with the lower income owes the other parent $211 a month in support for the one child who lives with that other parent. The parent with the higher income owes the other parent $680 a month in support for the other two children. When you subtract $211 from $680, the higher-income parent owes the other parent $469 a month in child support.

Undue hardship

In certain circumstances, a judge can order an amount that is either higher or lower than the table amount if following the tables would cause undue hardship to one of the parents or to the child.

Some of the circumstances that might be considered to cause undue hardship include:

•	travel or other costs make it unusually expensive for the parent without custody to see his or her child
•	one parent has an unusually high level of debt related to supporting the family before separation
•	and the amount of support determined according to the table would make it difficult for a parent to fulfill a legal duty he or she has to support other dependants

But it is rare for the support amount to be changed because of hardship.

Even if the judge finds that the amount set according to the table would cause hardship, it will not be changed unless it would cause the household of the parent
claiming hardship to have a lower standard of living than the other household.

When comparing the standard of living of the two households, the judge will look at the total income of each household and the number of people in each. This is the only situation in which the income of people other than the parents (or sometimes the children) is taken into consideration when determining how much support should be paid.

Incomes over $150,000

When the parent who is to pay child support has an income of more than $150,000, they must pay the table amount for the first $150,000. For the additional income, the judge will probably also order the table amount. But in rare circumstances the judge may order a lower amount based on the financial ability of each parent and the means, needs, and circumstances of the children.

Step-parents

The court must consider the Guidelines when setting the amount of support to be paid by a step-parent. But the court must also look at whether there is any other parent. This could be a birth or adoptive parent, or another step-parent. If there is another parent with an obligation to support the child, the court may order the step-parent to pay an amount that is different from the amount set out in the Guidelines.

Medical and dental insurance

When medical or dental insurance is available to one parent through work or at a reasonable rate, the court may order that parent to get or continue coverage for the child. This is in addition to any other support that parent might be providing.

What information is required?

The parent with the obligation to pay support is always required to provide detailed information about his or her income within 30 days after a support application is made. And if the income of the parent with custody is also to be considered when determining the amount of support, that parent must provide the same information.

After support has been ordered by a court, a parent who was required to provide financial information must update this information at the request of the other parent. But this information cannot be requested more than once a year. When making a separation agreement, it is a good idea for the parent receiving support to make sure the agreement sets out a similar obligation for the other parent to update their financial information.

Note:

“Child Support Q. & A.” has been extracted and edited from “Child support and the child support guidelines” produced by CLEO (Community Legal Education Ontario /Éducation juridique communautaire Ontario) with funding from: Legal Aid Ontario and the Department of Justice Canada.

The publications produced by CLEO are part of a series on family law and contain general information only. It is not a substitute for getting legal advice about your particular situation.

At Russell Alexander, Family Lawyers our focus is exclusively family law. To find out more about our services, we invite you to contact us or call the firm at 1.866.647.6335