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The 40% Rule: How Times Spent With Your Children Can Affect Child Support

What happens when your children spend approximately equal time with each parent? A common misconception is that no child support will be paid. While this may be true in some cases, the analysis is much more complicated.

If each parent has the children at least 40% of the time, the Child Support Guidelines (the “Guidelines”) consider this “shared custody” and state that the amount of support paid may be different than the Table amount because it is assumed that both parents are paying for the children’s ordinary expenses. Please note, “custody” in this context refers to the time with the children, not the power to make the important decisions regarding the children. It is possible to have a shared custody arrangement where one parent has sole custody of the children but the other parent exercises access with the children approximately half of the time. For obvious reasons, there has been significant litigation in this area of law, much of it initiated by non-resident parents attempting to reduce their child support obligations.

Shared Custody:

Section 9 of the Federal Child Support Guidelines states:

  1. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account:
  • the amounts set out in the applicable tables for each of the spouses;
  • the increased costs of shared custody arrangements; and
  • the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

The framework of Section 9 involves a two-part test: 1) the access parent must meet the 40 percent threshold; and 2) where the threshold has been met, the court must determine the appropriate amount of child support in the circumstances, taking into account the table amount for each parent, the increased cost of the shared custody, and the conditions, means, needs and other circumstances of both the parents and the children.

Calculation of Time with Children:

Unfortunately, there is no universally accepted method for determining the 40 percent calculation. This calculation can be quite nuanced and leads to much uncertainty. Every case will be determined on its own facts. In different cases, time spent sleeping, in daycare, in school, or in other activities has been included in the calculation. In other cases they have not. The courts have in some cases counted hours and in others counted days. While “over the course of a year” is not defined in the Guidelines, the courts have held that the calculation of time spent with a parent should generally be a calendar year.

Determining Appropriate Child Support:

Straight Set-Off

In a straight, 50/50 arrangement (or 40/60), the higher income earner would normally be ordered to pay the net difference of the parties’ respective applicable Table amounts (this is called a “set-off”). The support payment is calculated by determining the Table amount for each of the parents as though each was seeking child support from the other. The set-off amount is the difference between these two Table amounts. The set-off serves as a starting point and in many cases is the amount of support that will be ordered. Nevertheless, the court must also examine the increased costs of the shared custody arrangement and the conditions, means, needs and other circumstances of the parents and the children. The set-off amount may be varied where it would lead to “significant variations” in standards of living between the households or to avoid “great disparities” between households.

Increased Costs

Increased costs normally result from duplication of resources (the fact that the children are effectively being given two homes). The court examines these costs by looking at the budgets and actual child care expenses of each parent.

Conditions, Means, Needs, and other Circumstances

The court has full discretion under section 9(c) to consider the conditions, means, needs and other circumstances of the parents and the children and order child support at, above, or below the Table amounts. The analysis and amount ordered will depend on the particular facts of each case.

If you think you may have a shared custody arrangement, it is important that you speak to an experienced family law lawyer about how this arrangement may affect the amount of child support you are entitled to or have to pay. The lawyers at Radley Family Law can help.





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