Shared parenting and spousal support
How does shared parenting affect spousal support? You may think that spousal support and shared parenting are not linked. However, where there is income disparity between households, such that the children may find themselves travelling between a “have” and “have-not” parent, the Court may award spousal support if child support is not bridging that gap alone.
Cases and court comments:
D(AM) v J(KR), 2015 BCSC 1539
Application: The Mother applied for retroactive spousal support, child support and property division, the Father had resisted paying child support and spousal support since separation.
Background: The parties had been married for three years, with one child and since separation had shared the parenting regime with the Mother having the child for 8 days while the Father worked, and the Father having the child for 6 days on his days off from work. The Mother had an annual income of $25,960 and the Father made $177,675 annually. Since the separation the Father had resisted paying child or spousal support.
Outcome: The Justice calculated that the Father had the child for 42% of the time, so not a complete 50/50 shared parenting arrangement. The Justice calculated what the Mother would pay to the Father in child support if the Father had the child the majority of the time, and did the same for if the Mother had the child majority of the time, then subtracted the two numbers from each other. The resulting amount was then the owed child support. After the issue of the property was settled, with the Mother receiving 40% and the Father 60%, spousal support was addressed and the Court held that retroactive spousal support should be awarded at the mid-range, which would equalize the parties’ net disposable income, and resolve any disparities between the households.
Court Comments:
“[23] Because of the shared parenting arrangement in this case, I will consider s. 9 of the Federal Child Support Guidelines, SOR/97-175 [Guidelines], which states:
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.
[34] According to s. 9(a) of the Guidelines and recognizing the change which occurred to the child support tables in 2012, the set-off amounts which would be owed by the respondent since separation are as follows:
[37] In this case, the following factors persuade me that it would be inappropriate to apply the set-off. The respondent has D.J. just over 40% of the time; this is not a situation of 50/50 parenting time. The claimant has structured her work schedule in such a way as to allow D.J. to have had the benefit of being with a parent (rather than at a daycare or with another third party) for his entire week before he started full time school. This was an enormous benefit to D.J. but it also financially benefited the respondent who did not have to arrange or pay for child care when he was in the bush. This schedule has also meant the claimant has to work all weekend, while the respondent enjoys weekend time with D.J.
Notes: The Mother put a lot of effort in to accommodate the Father’s work schedule, and his lack of payment for childcare expenses, including taking on a lower paying job and working on just weekends. Doing so allowed for the Father to continue to work and rise in his work to his new position with a higher salary, while putting the Mother at a disadvantage by having to take a lower paying job. Child support and spousal support were awarded in acknowledgement of the multiple factors specific to this case, where the shared parenting was at a 42% to 58%, where the Mother earned significantly less than the Father. The Mother putting herself at a disadvantage for the Father to continue in his higher paying job, the Father staying in the family home after separation, along with some other considerations. Those were all factors that were taken into consideration when the Courts awarded Spousal Support to the Mother, and how much was awarded.
Paisley v Paisley, 2014 BCSC 1752
Application: The Mother applied for interim spousal support after separation, with a shared parenting regime of the two children of the marriage.
Background: At the time of separation the parties split the sales proceeds of the matrimonial home equally. The Mother left her job after separation due to the travel being unsustainable, the Father claimed that the Mother is intentionally unemployed after leaving that job.
Outcome: The Mother was awarded Interim Spousal Support, to be revisited when the parties went to trial and potentially changed based on the outcome of that trial.
Court Comments:
“[10] Where an applicant for spousal support is intentionally underemployed, the court may impute income to that spouse, with the resulting reduction in support payable. Examples cited by the respondent include Hanemayer v. Hanemayer, 2012 BCSC 329; and Marr v. Marr, 2007 BCSC 848.
[11] In Hanemayer, the claimant spouse was earning $10,000 a year but the court found she was capable of earning twice that and attributed the higher income to her for the purpose of fixing spousal support under the spousal support advisory guidelines. In Marr, the court found that the wife had a long history of employment, had made no effort to find work and had failed to provide medical evidence to support an alleged disability. An income of $15,000 was attributed to her.
[15] The respondent raises issues of whether the claimant is intentionally unemployed, whether it was necessary to leave her former job and whether she has made a good faith effort to find other work. These are all matters that can only be decided on all the evidence at trial. On this interim application, the only question is whether a current need has been proved. I am satisfied that the claimant has no current income and there is therefore obviously a need, making an interim order for spousal support necessary.
[18] As was pointed out in R (D.M.), the Spousal Support Advisory Guidelines are a useful tool when determining interim spousal support, but depending on the circumstances may not be applied in the same way on an interim application as at trial. Having regard to the interim nature of this application and the goal of “bridging the gap” until trial, I note that in this case the low spousal support amount results in an exactly equal division of the available net disposable income. I find that to be the appropriate measure of interim support and order interim spousal support of $2,671 a month.”
Notes: The basis for an Interim Order is much lower than that of a Final Order, so a lot of the information the Father was stating would need to be proved at trial, but would not be a factor in the Interim Order. As an Interim Order is to see if there is a need at the time of Application and would be revisited later at trial to determine if it should continue or change. The Mother showed her need at the time of Application and the judge was satisfied with that, noting that a lower range spousal support for the time being would bridge the gap between disposable incomes for the party until matters could be sorted out at trial.
PAA v FGT, 2015 BCSC 662
Application: The parties had already settled the issue of holiday parenting time, and this was a further hearing to determine child and spousal support as well as weekly parenting time.
Background: The parties were never married, but lived together for 11 years and had three children together. The parties still lived together despite being separated and shared parenting duties.
Outcome: The Courts awarded spousal support on the low range to the Mother for a total of 6 years after the date of separation, along with a two week rotating shared parenting schedule.
Court Comments:
“[34] The suggested amount of spousal support, using the “with child support formula”, based on an income of $96,816 for the respondent and no income attributed to the claimant, ranges from a low of $1,182 to a high of $2,060 per month, with a mid-range of $1,828. The calculations show that if the respondent were ordered to pay at the low end of the range, he would retain only 45% of the net disposable income of the couple, whereas the claimant would have 55%. At the mid-range, after paying both child support and spousal support, he would have only 37.5% of the net disposable income, and she would have 62.5%. Given the shared parenting arrangement, I am of the view that there should not be a pronounced difference in the standard of living in the two households. For this reason, I am satisfied that the amount of spousal support should be closer to the low end of the range.
[35] Moreover, although the calculations were based on no income being attributed to the claimant, and although the respondent has agreed to pay child support in an amount that does not attribute any income to her, I am nevertheless of the view that she could be working at least part-time. Although she is taking some courses, they are not full-time, and she should be able to earn at least some income. For these reasons, I order that the amount of spousal support should be closer to the low end of the range. I order that the respondent pay the claimant $1,200 per month in spousal support, commencing April 1, 2015.
[46] I agree with the respondent that the duration of spousal support should not be 8 years from the date of separation. I have come to the conclusion that a proper duration for spousal support in the circumstances of this case is 6 years from the date of separation, that is, until October 31, 2018. It is reasonable to expect that the claimant can, with appropriate diligence, make herself economically self-supporting by that date, and therefore, no longer in need of spousal support.”
Notes: There was no dispute over the amount of child support that the Father should pay to the Mother, despite the shared parenting as due to some previous circumstances the Mother was not working so had an income of $0. The Mother wanted the Father to pay spousal support from the date of separation for up to 8 years post separation so she could attend schooling. The Court took into account that between child support and spousal support the disposable income would not be favorable to the Father if the Mother was granted higher end spousal support. So while the Courts wanted to ensure that the children were able to have similar life styles with both parents, the Courts also wanted to ensure the fairness between the parties.
Lazare v Heitner, 2018 ONSC 3604
Application: Second review of Spousal Support after a 12 year relationship that ended 13 years prior. The Father asked to have his obligation for Spousal Support terminated and for the child support to be adjusted, due to the shared parenting regime and the full time income of the Mother. In response the Mother requested the child amount remain the same, and for an increase in Spousal Support with no termination date.
Background: The parties were in a relationship for 12 years, married for 5 of those. They have two children who are teenagers at the time of the hearing. The Father has the children for over 40% percent of the time and has an annual income of $250,000 while the Mother has an annual income of $47,915
Outcome: Child support was changed based off of the Shared Parenting regime, but Spousal Support was ordered to remain the same so as to offset the disparity of incomes, with a termination date.
Court Comments:
“This is often referenced as a safeguard that children do not grow up between a "have" and a "have-not" home. In reality, it is far more nuanced. As parents re-partner, take on new child care responsibilities, make very different financial decisions and pursue new priories, standards of living between homes can vary greatly. One parent may be a saver, one a spender. One may be building equity in a business or home, another may prefer the purchase of services or experiences.
Nonetheless, the "with child" formula for spousal support attempts to find some measure of parity within ranges of spousal support after adjustment for child support.
In this second review of spousal support I find that Ms. Heitner does have a compensatory claim for spousal support, but it is limited to this narrow ground: achieving some measure of parity between their households so that the children do not experience financial disparity between their parent's homes.”
Notes: The Judge determined that the Mother’s right to spousal support had expired, however due to the large discrepancy in incomes, determined it would be in the children’s best interest to continue the Spousal support so to ensure the children could have the same lifestyle in each household. However, the Judge did not agree that there should be no termination date to the Spousal support as the Mother had the ability to work, and was attempting to go to school to acquire a job so would be self sufficient.
