If a parent who is paying child maintenance benefits from an increase in their income post separation to what extent should their children benefit from this increase vis a vis their child maintenance payment?

 

In a shared parenting arrangement where both parents have the children approximately half the time the court can depart from the set off guideline amount of child maintenance pursuant to section 9 of the Federal Child Support Guidelines:

 

Shared Custody

9 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

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared custody arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

 

Furthermore, section 4 of the guidelines sets out the criteria for calculating child maintenance when a payor’s income is over $150,000 per year:

 

Incomes over $150,000

4 Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is

(a) the amount determined under section 3; or

(b) if the court considers that amount to be inappropriate

(i) in respect of the first $150,000 of the spouse’s income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;

(ii) in respect of the balance of the spouse’s income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and

(iii) the amount, if any, determined under section 7.

 

The question becomes how much child maintenance is reasonable. Is it an amount which is just sufficient to meet the child’s basic expenses or is it an amount that allows the children to enjoy the same level of discretionary spending that the payor spouse can enjoy as a result of his or her higher income (i.e. trips and other luxuries).

 

The B.C. Court of Appeal in B.P.E. v. A.E. 2016 (BCCA) 335 held that whether the children’s basic needs were being met should be given little weight and that children should share the benefit of increases in their parent’s income just as they would have had the family remained intact. Where the payor’s income is very high child support should “include a large element of discretionary spending.”

 

Deborah A. Todd