Child Custody and Support

Custody battles and child support disputes have the potential to be extremely destructive. Our courts, legislators and family law Bar are aware of this and, are increasingly encouraging parties to find ways to settle.

The resources geared towards assisting settlements have exploded and may include mandatory courses and settlement conferences. Increasingly numbers of counsel are trained in mediation and to conduct Collaborative Law files (a form of dispute resolution which requires parties to commit to trying to resolve their difficulties out of court.) Our Judiciary also provides dispute resolution services.

If parents cannot agree upon a custodial arrangement for their children and seek a resolution in court, the test across Canada is: 'What is in the best interest of the child'. While this test is simple to state, it generally demands our courts dig beyond the basics (i.e. what the parents want, historical living arrangement and incomes), to arrive at the best possible understanding of where the child(ren) will truly thrive. Battling parents frequently retain child psychologists to conduct custody assessments to provide this information to the court. This is a time consuming, emotionally exhausting and expensive process. Often the assessment results will assist parties to settle, if not, they will need to proceed to trial.

Increasingly, one or both parents will suggest parenting their children in an equal, 50/50 arrangement. There is no presumption in favour of equal parenting. If the parents cannot agree and must litigate this issue, they will find that their motivations for seeking equal time, as well as all other factors, will be reviewed when the court considers the best interest of the child.

Whether solved by agreement, mediation or through litigation, custody Orders are becoming increasingly specific and creative. Orders frequently include detailed holiday schedules, decision making rules, rules for travel and rules for sharing information, such as report cards or plans to move. The aim is to ensure, that, whatever the living arrangement, each parent is given a vital role in their children's lives, consistent with the best interests of the children.

In May, 1997, the Federal Child Support Guidelines came into effect. The aim of the Guidelines is to reduce litigation by providing a predictable, easy to determine, Canada-wide method of calculating child support.

The first step under the Guidelines is to determine the gross incomes of the parties. This should include all income received, whether as salary, cash, bonus, retirement allowance, severance pay, rent, etc. Parties should consult with a lawyer for assistance in determining Guideline income, particularly when income is from multiple sources, where it may not be accurately reported or when tax planning has been involved.

The next step is to turn to the Guideline Tables. The non-custodial parent's gross income is entered into the Table, under the appropriate number of children. This will produce a result which represents the tax free amount of money the non-custodial parent must pay the custodial parent each month for child support.

If the parties share equal parenting time, then the gross incomes of each parent is entered into the Table. Generally, the lower result is subtracted from the higher number and then the difference is payable by the higher income earner to the lower income earner. There are exceptions to this principle which should be discussed with counsel.

The third step is to determine if there are any expenses for child care, health care, educational expenses, post-secondary educational expenses or extracurricular expenses. Parties should consult their lawyer with respect to which expenses qualify under this step. These expenses are then shared in proportion to the parties' gross incomes.

There are many tools available to assist parties to settle the matter of child support. If parties cannot settle, they should be aware that our courts expect that parents will pay child support in the right amount owing and on time. Parents who are not paying enough or who have not paid at all may receive harsh treatment, which could include retroactive increases, costs and interest.

Hopefully, our legislation and the increased emphasis on settlement will mean that both the manner in which parties work through these issues and the results are truly in the best interests of children.