Time not always factor in payments
CHILD SUPPORT RULING Amounts don’t have to rise, fall: Supreme Court Division of costs not solely based on custody changes
OTTAWA— Child support payments shouldn’t automatically be tied to how much time parents spend with their kids, the Supreme Court has ruled in a judgment that’s expected to broadly affect custody disputes. The case revolved around a divorced father’s claim that he should have received a reduction in the child support payments paid to his former wife after he began spending more time with their son than was set out in the original custody agreement.
In an 8- 1 ruling, Canada’s top court stipulated judges must take the financial circumstances of parents into account when making awards for support payments, but that shifting custodial arrangements shouldn’t necessarily mean an adjustment in the amounts.
According to the majority of the court, factors such as fixed costs that are associated with child- rearing must also be considered, as should the recognition that shared custody is usually more expensive than sole custody.
Writing for the majority, Justice Michel Bastarache said that the practice of basing reductions or increases in support payments on the number of days a child spends with the paying parent isn’t sufficiently flexible.
“ The determination of an equitable division of the costs of support for children in shared custody situations is a difficult matter; it is not amenable to simple solutions. Any attempt to apply strict formulae will fail to recognize the reality of various families,” he wrote. The lawyer for the appellant in the case said the ruling adds clarity to one of the most contentious areas of child support agreements. “The most important thing that happened today is it has ended the battle of dollars for days. I think this decision is going to substantially reduce one of the areas that families have conflict over when they’re separating,” said family lawyer Deidre Smith, who represented Joanne Leonelli-Contino, the appellant in the case. The federal government set out a child support schedule in 1998 that established fixed payments based on the income of the paying parent. Smith said the legal confusion over the so- called “ 40 per cent rule” — if a child spends more than 40 per cent of his or her time with the parent paying child support, that parent can ask for a reduction — has made divorcing couples more reluctant to agree to modifications in their custody agreements lest the payments be affected.
“ Now I think moms and dads are going to be able to negotiate parenting plans that really do maximize the amount of time the child has with each of the parents without having the fear of what that means in terms of their finances,” said Smith. “ It’s a decision that’s very good for kids.”
Yesterday’s ruling was the culmination of a five- year legal battle pitting Leonelli-Contino against her former husband Joseph Contino. The Woodbridge, Ont., couple separated in 1989 and struck an agreement in 1992 for the shared custody of their son Christopher, who was 6 years old at the time.
Contino agreed to pay $500 per month in child support, an amount that was raised to $563 in 1998.
In 2000, Contino sought to have the payments reduced because his former wife had taken an evening course and their son was spending an extra night per week at his house. He later began spending two nights at his father’s house most weeks.
Contino’s lawyers insisted their client didn’t make the request for lower support payments until after the course was over, and the then- 15- year- old Christopher started spending half his time at his father’s home.
After going to court to seek a reduction in 2001, a judge slashed the amount of Contino’s monthly support payment to $ 100.
After a series of appeals that then saw the payment increased to $688 — the amount that was mandated by federal guidelines — a 2003 Ontario Court of Appeal ruling cut the payments to $ 399.
In its judgment yesterday, the Supreme Court determined LeonelliContino will receive $500 monthly.