Putting Children's Interest First - Federal-Provincial-Territorial Consultations on Custody and Access and Child Support
PART 2: CHILD SUPPORT
Child support guidelines are rules and tables that help parents and others figure out how much child support a parent will pay after separation or divorce. The guidelines were developed to help parents predict the amount of child support a judge would likely set, and to ensure that children in similar situations are all treated the same when it comes to child support. The Divorce Act and most provincial and territorial laws include guidelines. It is important to note that Quebec has adopted its own child support guidelines and, as a result, certain questions in this consultation paper do not apply to Quebec’s guidelines.
As part of the legislation that made the child support guidelines law, the federal Minister of Justice committed to reviewing the guidelines and reporting back to Parliament about them in May 2002. To gather information for this review, federal government officials meet regularly with their provincial and territorial counterparts, with the legal community through organizations such as the Canadian Bar Association, and with the public, parents and other interested parties, through formal and informal consultations.
This part of the consultation paper looks at four issues related to child support:
- child support in shared custody situations;
- the impact of access costs on child support amounts;
- child support for children at or over the age of majority; and
- child support obligations of a spouse who stands in the place of a parent.
Each issue is discussed in a separate section, which contains background information on the issue, sets out the specific points of concern, and reviews what governments have heard on the issue from various parties over the years. Each section also contains a series of questions for you to answer in your feedback booklet.
CHILD SUPPORT IN SHARED CUSTODY SITUATIONS
When children live with each parent close to the same amount of time after separation or divorce, the overall parenting costs are higher. This is partly because both parents in these shared custody situations often have to provide a home for the children. The parents may also each have expenses for other important items such as food, transportation and clothing.
Currently, the child support guidelines have a special rule for determining the amount of child support in shared custody situations. To use the shared custody rule, a parent must exercise access to, or have physical custody of the children for 40 percent or more of the time in a year. This rule sets out the factors that parents and others should consider when determining the child support amount (such as the extra costs and unique aspects of shared custody arrangements) while maintaining flexibility.
This section looks at two issues related to child support and shared custody situations. The first is how to decide whether the parents really have a shared custody arrangement. The second is determining the child support amount.
Determining Whether the Shared Custody Rule Applies
Some people say there are problems with using only time to determine whether the shared custody rule applies. In particular, they say that the rule links the amount of child support with the amount of time a parent spends with his or her children. Many people believe that this causes parents to fight over the amount of time they each spend with the children, and that these disputes are much more difficult to resolve than disputes over child support issues because of the emotions involved.
In fact, the shared custody rule was not intended to change the long-standing legal principle that child support and custody are unique issues that parents should deal with separately. Parenting arrangements should be based on what is best for children, not on what will benefit either parent financially.
Some people say judges should look at factors other than time when deciding whether the shared custody rule applies. This is because they believe that there is more to parenting than just how much time parents spend with the children. Other factors judges could look at include how the parents share the children's expenses, whether the children have two main homes, and which parent looks after the children's needs.
On the other hand, some people argue that adding more factors would only complicate things. More factors would mean more things for parents possibly to fight about, making agreements harder to reach and perhaps leading to longer and more expensive court procedures.
Still other people feel that time should not be a factor that judges consider when determining whether the shared custody rule applies.
Below, you can tell us which factors you think judges should use to determine whether the shared custody rule applies.
A related problem, as some people and judges have commented, is that the 40 percent figure in the shared custody rule is arbitrary and the amount of time parents spend with the children is hard to determine accurately. In fact, the guidelines provide no instructions for calculating it. In addition, it is the actual amount of time that parents spend with the children that judges look at, not what the written agreement or court order says. Some people feel that it would be better to make the definition of the time element more flexible, and give judges more discretion when deciding whether the shared custody rule applies.
What factors do you think judges should look at when deciding whether the shared custody rule applies?
- Judges should look only at the amount of time each parent spends with the children.
- Judges should look at several factors, including time. Other factors could include whether the child has two main homes, and how parents share the children’s expenses and child-care responsibilities such as direct care and supervision, arrangements for health care, school, daycare, out-of-school care and extracurricular activities, supervision of homework, and purchase and maintenance of clothing.
- Judges should not look at the amount of time each parent spends with the children. They should look only at factors related to how the parents share responsibility for the children’s expenses and share child-care responsibilities, such as those described above.
- Other (please explain)
If time continues to be a factor that judges look at when deciding whether the shared custody rule applies, what is the best way to define it?
- The children must spend at least 40 percent of their time with each parent.
- The children must spend
"substantially equal"time with each parent.
- Other (please explain)
Determining the Child Support Amount
Under the child support guidelines, judges must look at three things when determining the amount of child support in shared custody situations:
- the amount set out in the provincial and territorial child support tables, by income, for each parent;
- the increased costs of the shared custody arrangement; and
- the means and needs of the parents and the children.
Judges have wide discretion when deciding the child support amount in shared custody situations. This is because shared custody situations include many parenting arrangements. The costs to each of the parents can vary greatly depending on the exact nature of their parenting arrangement. Figuring out how to calculate the child support amount in shared custody situations can be very difficult and many people have suggested ways to make it simpler.
Which of the methods below for determining the child support amount do you think would work the best for parents in shared custody situations? You may choose more than one of these methods.
- Some people believe that, when parents share physical custody of their children equally, neither parent should pay child support.
- Others argue that the child support amount should be set to make the standard of living of both households the same.
- Many people think that a formula would be the best way to recognize the increased costs of a shared custody arrangement.
- Others believe that judges should have discretion, as they do now, when setting the amount of support, because a formula may not apply fairly across the range of the many parenting arrangements families with shared custody have.
- Another option is for judges to look at lists the parents prepare of their expenses related to the children. This is what judges did before the child support guidelines were introduced.
Please describe in your feedback booklet any other method you think would be effective and explain why it would work.
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