In a letter to Justice Canada dated April 22, 2022, the CBA’s family law section recommended a presumption that each parent pays support to the other under the table amount for their income in cases of shared parenting, with room for the parties to rebut the presumption where it would be inappropriate.
The suggested presumption addresses the difficulty of pursuing a complete Contino analysis required by s. 9 of the guidelines. The Alberta Court of Appeal once described this approach as “prohibitively expensive” for family law litigants in MacDonald v. Brodoff, 2020 ABCA 246.
Replacing a Contino-style analysis with the presumption would allow parents to adjust support easily as incomes and special expenses varied. It would also allow services to recalculate support based on a specified formula instead of the recalculation officer’s discretion, a requirement which disqualified shared parenting orders for recalculation in many provinces where recalculation programs were even available.
As a possible addition to its proposal, the CBA recommended that a new category of s. 7 expenses be considered in cases of shared parental responsibility. The category could be a general one subject to the court’s discretion or one which would include items outside the current definition of s. 7 and usually paid for by the recipient of child support. The CBA considered seasonal clothing, haircuts, and other items where the cost incurred benefited the child in both homes within this category.
The CBA believed these changes would better achieve the objectives of the Child Support Guidelines. They would not only establish a fair standard of support for children from the income of both spouses after separation; they would also reduce conflict between spouses, improve access to justice, and promote the efficiency of the legal process by providing courts and families guidance in setting the levels of child support orders.
The CBA pointed out that this presumption would still be consistent with other guideline provisions, such as s. 3(2) directing child support for adult children to be determined as if the child were minor except where the court considered it inappropriate under the circumstances.