New Brunswick Court Of Appeal Rules On Child Support Obligations Of Shared Parents

• Published date: 20 November 2020
• Subject Matter: Family and Matrimonial, Family Law, Divorce
• Law Firm: Cox & Palmer
• Author: Ms Maria K. Powell

The New Brunswick Court of Appeal's decision in ASL v LSL, 2020 NBCA 15, reaffirmed the high standard on judges determining child support obligations for parents with equal amounts of parenting time.

Background

In ASL, the parties had a separation agreement, signed shortly after their separation, which provided the parents with roughly equal parenting time (also known as "shared parenting"). As the parents had similar incomes, they agreed that neither one of them would pay child support to the other. The parents agreed on the children's special expenses and shared the financial costs of these equally. There was a provision requiring the parties to exchange their income tax returns annually for the purpose of revisiting and reevaluating the support obligations. When the mother filed a petition for divorce in 2019, she requested that the terms of the separation agreement form the basis for the order of the Court when it granted the divorce. While the divorce proceeded on an uncontested basis, the father appealed the Divorce Order and the corollary relief on the basis that the trial judge should have requested and analyzed the full financial details of both parties to determine if the child support arrangements were appropriate considering section 9 of the Federal Child Support Guidelines. The Court of Appeal agreed.

Where one parent has the primary care of children, child support is determined on the basis of the Federal Child Support Guidelines under section 3 and using tables based on income from which the Court has little discretion to deviate from. When a parenting arrangement has the parties caring for the children equally (or with one parent at least 40% of the time), child support is determined under section 9, using the incomes of both parents as a starting point. ASL reminds us that the set-off amount determined by the difference in the amount each parent would be required to pay the other is only the first step of the inquiry.

Decision

Section 9, as confirmed by Contino v Leonelli-Contino, 2005 SCC 63, has always allowed for adjustments to child support to provide children with a more consistent standard of living in each parent's household, but it seldom resulted in judicial scrutiny in matters where the parties were in agreement that the set-off support amount is appropriate.

ASL has changed this, meaning the requirement for parents with shared parenting arrangements to provide detailed financial disclosure is much higher even when the divorce is...