Week on, week off is now a familiar routine for many separated families in Brampton. So is the conversation that follows it: “We have the kids equally, so neither of us should pay anything.” It sounds fair. It is also, in most families, not how child support works.
In Canada, the law treats child support as the child’s right, and shared parenting time changes the calculation without doing away with it. Once each parent has the child for at least 40 per cent of the time over a year, section 9 of the Federal Child Support Guidelines applies, and that section calls for a more flexible and fact-based analysis than the usual table lookup. There are real savings available to some parents, and real traps for others.
This is general information, not legal advice. The same concept appears in the Ontario Child Support Guidelines, which usually apply to parents who are not divorcing, so the discussion below is broadly relevant whether or not you were married.
The 40 per cent threshold
Section 9 applies where each spouse exercises not less than 40 per cent of parenting time with a child over the course of a year. Below that line, the parent with less time normally pays the full table amount, plus their share of any special expenses. At or above that line, the court must apply a different approach.
Forty per cent works out to about 146 days out of 365. There is no single official method for counting, and the Guidelines do not prescribe one. Courts have used days, overnights and hours in different cases, trying to reach a realistic picture of the actual arrangement. Consider a couple of hypothetical schedules:
- Week about. Seven days with each parent. This is plainly over the line.
- Every other weekend, Friday to Monday, plus one overnight per week. Over a two-week cycle this gives roughly five of fourteen nights, or about 36 per cent. Summer and holiday time could push this above 40, depending on how it is shared.
- Alternating weekends plus after-school time until 7 p.m. twice a week. Counting by overnights, this is clearly below the threshold. Counting hours could look quite different, which is exactly why these cases get argued.
A few things tend to matter in those disputes. A court looks at the time each parent really has, and the schedule written in an order is a starting point and not the final word. Time when a child is at school or at camp does not automatically go to one parent’s side of the ledger; courts have approached it in different ways, sometimes considering who is responsible for the child during that period. And a parent who regularly misses their weekends may not get credit for them.
The onus falls on the parent asserting the threshold has been met. A parent who is close to the line should expect to prove it with calendars, school pickup records, messages and similar evidence.
Section 9 sets out three considerations
Where the threshold is reached, the amount of support must be determined by taking into account:
- The amounts set out in the applicable tables for each parent
- The increased costs of shared parenting arrangements
- The conditions, means, needs and other circumstances of each parent and of any child for whom support is sought
In its main decision on section 9, Contino v. Leonelli-Contino, 2005 SCC 63, the Supreme Court of Canada made clear that none of the three factors automatically prevails. There is no presumption that the table amount applies, and no presumption that support will go down by any set formula. The Court also rejected using a fixed multiplier to account for shared costs. All three considerations have to be looked at.
Starting with the set-off
In practice, the first step is usually a simple calculation. Take what each parent would pay under the table, based on their own income, for the number of children involved. Then subtract the smaller amount from the larger.
Here is a hypothetical with made-up, rounded numbers. Do not use them for your own case, since actual amounts depend on current tables and exact incomes. Suppose that for two children, the table shows $1,300 a month for Parent A and $800 a month for Parent B. The simple set-off is $500 a month, payable by Parent A to Parent B.
If both parents earn about the same, the set-off will be near zero, and this is why people sometimes think equal time means no support. But in many families, incomes are not equal. A nurse earning a good salary and a part-time retail worker sharing a week-about schedule could still see a meaningful monthly payment flowing to the parent earning less, and that is the point: the child should not have a sharply different standard of living in each home.
This set-off is a starting point, not the end. It can leave a recipient parent with a much smaller contribution to fixed costs than before, even though that parent’s costs have not actually dropped. A court may adjust the figure in either direction after reviewing the budgets.
Fixed costs, variable costs and duplicated costs
The second factor asks about the increased costs of shared parenting. Shared time does not simply transfer costs from one home to another. Often it adds to them. Each house may have a bedroom, a bed, winter clothing and a set of school supplies. The cost of running a family home in Brampton does not fall just because the children are at the other home half the month.
A helpful way to think about budgets:
- Fixed costs such as rent, mortgage, property tax and utilities tend to stay the same whatever the schedule.
- Variable costs such as food and some transportation may genuinely shift to whichever home has the child.
- Duplicated costs exist only because the child now has two homes.
Do not simply assert that your costs have gone up. You will generally need budget information, and a judge may want financial statements from both parents to do this analysis. Section 9 cannot be properly decided on two tax returns and a sentence or two of argument. In family court, this generally means filing sworn financial statements and providing supporting documents.
Means, needs and the standard of living in each home
The third factor looks at the overall financial picture: income, assets and debts, new partners’ contributions where relevant, and what the child’s life looks like in each home. A big gap between the two households might support a higher payment to the parent with the lesser means. A court can look at how the child would live in each household and consider whether the proposed result makes sense.
This also means that the outcome can sometimes be close to, or even equal to, the full table amount. It can also be below the set-off, though that is less common in practice. Parents who reach 40 per cent hoping for an automatic reduction are sometimes surprised to find that the reduction is modest.
Section 7 expenses do not go away
Special or extraordinary expenses are a separate matter. These include childcare needed for work, medical and dental costs not covered by insurance, some educational costs, post-secondary tuition and certain extracurricular activities, as long as they are necessary and reasonable. The general rule under section 7 is that parents share them in proportion to their incomes, after accounting for any contribution from the child.
So a family with equal parenting time, but with one parent earning twice as much as the other, might still share a child’s braces approximately two-thirds to one-third. Put this into your agreement explicitly. Spell out which expenses are covered, how they are approved, how quickly they are reimbursed and how the income percentages will be updated.
Don’t confuse parenting time and money
Judges see parents who appear to be fighting for extra time when what they mean to achieve is lower support, and judges see parents refusing additional time to keep the table amount intact. Neither strategy tends to go well, for a few reasons.
Parenting time is decided on the child’s best interests. Financial motives have no place in that analysis, and if your messages reveal that the schedule is about money, your credibility on every other issue may suffer. Also, the math is often less rewarding than people expect: because of the factors above, an extra day or two per month may yield far less savings than expected. Finally, if the time is not actually exercised, you may not get credit for it.
Similarly, it is a mistake to hold back the children because support has not been paid, or to stop paying because the children were held back. In Ontario, support and parenting are treated as separate obligations. Each has its own enforcement routes, and self-help in either direction can look bad in court.
Agreements, waivers and “no support” deals
Parents can agree on child support, including a shared-time arrangement that involves no transfer between homes, if that truly reflects section 9. However, courts are not bound by agreements that are unreasonable in light of the Guidelines, and a court may disregard such a provision when deciding a child support issue. This follows from section 56(1.1) of Ontario’s Family Law Act and related provisions in the Divorce Act.
If you do reach an agreement, record:
- The actual parenting schedule and the percentage it represents
- Each parent’s income, and how it was established
- The table amount for each parent, and the set-off
- Any reasons for going above or below the set-off
- Which expenses are shared and in what proportion
- How and when incomes will be exchanged each year
This matters, because a one-line “no child support payable” clause gives a future judge very little to go on, and it may not hold if circumstances change or one parent later applies.
When the schedule changes
Shared arrangements are particularly likely to drift. A teenager decides to live mainly with one parent; a job moves; a new baby arrives. If time falls below 40 per cent for one parent, section 9 may no longer apply, and the table amount can come back. Conversely, a parent who has been paying a full table amount and has since moved to genuine shared parenting may be able to seek a change. However, the existing order keeps running until it is changed. An informal agreement does not stop arrears accumulating at the Family Responsibility Office.
You may also have to revisit your Canada Child Benefit arrangement when the schedule changes, because Canada Revenue Agency has its own rules about shared custody. It is a separate issue and uses its own definitions, so a family court order will not automatically resolve it.
If you have children with different arrangements, note that section 8 deals with “split” parenting time, where each parent has most of the time with at least one child. Section 8 uses a straight set-off. Mixed arrangements can be complicated and may call for individual calculations.
Getting the numbers right
Before you negotiate, get both parents’ current incomes, run the table calculation for each of them, and create a monthly budget for each home. Then count your actual parenting time from last year’s calendar rather than the calendar you were hoping for. Those four steps will tell you much more than a family member’s anecdote will.
If the result is close to the threshold, or if the incomes are far apart, it may be worthwhile to speak with someone about the likely range before you dig in. Our child and spousal support page describes the broader framework. If you and your former partner are also working out the schedule, our custody and parenting page covers that side of it.