For even the best-intentioned parent trying sorting out what amount of child support is payable (or receivable), the Federal Child Support Guidelines (“Guidelines”) can be very confounding. This is particularly true when a payor’s income is over $150,000.00. Section 4 of the Guidelines states that at that income level the tables may not be applicable. So how is the child support determined? And what if there is a shared parenting arrangement? Section 9 of the Guidelines sets out a 3-part approach to determining the appropriate amount of child support starting with the infamous “set off” found at Section 9(a). How do you make sense of the two approaches? Does Section 4 apply? Or Section 9?
Justice J. McCarthy looked at this very issue (amongst others) in Walker v. Walker  A.J. No. 550. They parties had one child and they began sharing parenting equally about 2 years after their divorce. The recipient mother sought to enforce the standing Order with respect to child support which would have had the full table amount of child support payable to her based on the father’s guideline income of over $700K. The father brought an application seeking to vary the amount of child support he was paying (based on the fact that the child was now in his care ½ of the time) . So here we find the two issues intersecting: an income of over $150K and equal shared parenting.
Firstly, the court wants to be sure that there is actually shared parenting and evidence must be before the court to support that claim. The Walkers agreed that they shared the care of the child equally so there was no dispute there. What happens when it is not so clear? Some parents find themselves counting days (does time in school count?) and nights trying to sort out if there is really shared parenting. This is can be very frustrating and yet so important since once a shared parenting arrangement is determined purportedly the child support approach can change.
In Walker, the court clarified that there is no presumption in a shared parenting context that the table amount of child support is the amount payable – the tables and the “simple set-off” are merely a starting point for the analysis under Section 9(a) and the full section 9 framework must be applied. The court goes on to look at the parties’ respective budgets for the child and examines the parents’ actual expenditures in relation to the children to determine if the shared custody has led to increased costs as set out in section 9(b). The court makes it clear that the analysis does not end there but includes consideration of the conditions, means, needs and other circumstances of each spouse and of the child/children for whom support is sought (section 9(c)). The court has broad discretion to assess the available resources and needs of the parents and children. This will vary widely from family to family and court identifies that it is very much a case by case inquiry.
Section 4 of the Guidelines also contemplates a determination of the appropriate amount of support having regard to the “condition, means, needs and other circumstances” analysis which includes the amount of Section 7 expenses being paid for. So Section 4 and Section 9 share the approach of allowing a more robust inquiry into the parties’ overall situations to get to the right number for child support.
At the end of the day, Justice McCarthy ordered that the father pay to the mother an amount less than the set off in spite the significant disparity in their incomes relying on comprehensive inquiry into financial circumstances of the family. Importantly, the court points out that an increase in wealth of a payor spouse does not directly result in an increased support payment since child support is about the maintenance and care of the child not income sharing. What we can take away from Walker is that there are shared parenting cases where the court will not necessarily rely only on the set-off at the full table amount when the work is done to proffer the necessary evidence supporting a different approach because of the unique circumstances of the family.