Family Law Principles that we can learn from Thompson v. Thompson 2013 ONSC 5500 (Child Support - Parenting Arrangements)

General Principles Relating to Shared Parenting, Split Custody and “Hybrid” Child Care Arrangements

In Thompson v. Thompson, the court determined that the parties had a “split custody” arrangement for their children. This implies that the children would be divided between the parents rather than being placed collectively under the care of one parent. The Child Support Guidelines in such circumstances refer us to section 8 of the Guidelines in these circumstances. This section stipulates how child support should be calculated in cases of split custody. The calculation should be based on the difference between the sums that each spouse would be required to contribute if a child support order was sought against each spouse, instead of a collective parental unit.

The Respondent has made allegations regarding equal time spent with the child by both the involved parties. This particular type of custody arrangement, where both parents spend an equal amount of time with the child, is often referred to in legal terms as a “hybrid” case.

In the context of this arrangement, the Guidelines that are usually referred to for determining the course of legal action do not provide any specific instructions or directions on how child support should be calculated in such unique cases. To make matters more complex, there is no existing appellate authority or higher court decision that provides guidance on this particular issue.

The existing case-law, in dealing with such situations, has primarily drawn from the established law specifically around the application of section 9 of the Guidelines. This section provides instructions for how child support should be calculated in “shared custody” situations. In these cases, a spouse, be it the husband or wife, has access to or physical custody of the child for a significant amount of time, specifically not less than 40% of the time over the course of a year.

Shared custody

When a parent or spouse exercises a right of access to, or has physical custody of, a child for not less than 40% of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account certain factors. These factors include the amounts set out in the applicable tables for each of the parents or spouses, the increased costs of shared custody arrangements, and the condition, means, needs, and other circumstances of each parent or spouse and of any child for whom support is sought.

The Supreme Court of Canada addressed these considerations in the case of Contino v. Leonelli-Contino. The court made significant comments regarding the interpretation of section 9 and how child support calculations should be approached in shared parenting scenarios.

The court emphasized that in shared parenting arrangements, there is no presumption in favor of the parent who spends less time with the child paying the table amount of child support. A finding that a shared parenting arrangement exists does not automatically mean a deviation from the table amount of child support.

In reaching an appropriate child support figure, the court must consider the overall situation of shared custody, the costs to each parent of the arrangement, and the overall needs, resources, and situation of each parent and child. The weight given to each of these factors may vary according to the specific facts of each case.

The purpose of section 9 is to ensure a fair and reasonable amount of child support. This means considering the need for fairness, flexibility, and the actual condition, means, needs, and circumstances of each parent and the child, even if this sacrifices some degree of predictability, consistency, and efficiency.

The calculation of child support under section 9 involves a two-step process: firstly, determining whether the 40% threshold has been met; and secondly, if the threshold has been met, considering the factors outlined in section 9 to determine the appropriate amount of support.

The parent relying on section 9 of the Guidelines is burdened with the task of establishing that the 40% threshold has been met. This 40% threshold refers to the amount of time a child spends with each parent over the course of a year. However, the phrase “over the course of the year” is not explicitly defined within the Guidelines, which can lead to ambiguity in its interpretation.

In Froom v. Froom, the Ontario Court of Appeal held that there is no universally accepted method of deciding the 40% threshold issue, and that rigid calculations of time are not necessarily appropriate. This implies that the court may use its discretion in determining whether the 40% threshold has been met based on the specific circumstances of each case.

In certain situations, particularly where retroactive relief is sought and it is alleged that the income of one or both parties has changed, the courts have held that the appropriate time for the calculation of time spent with each parent is the calendar year. This means that the total time each parent spends with the child over a calendar year should be considered when determining if the 40% threshold has been met.

The court, in this case, endorsed the comments of the trial judge that the focus should be on determining whether physical custody is truly shared by the parents, rather than simply relying on a strict calculation of time. This highlights the importance of considering the practical reality of the child's living situation and the nature of the parents' involvement in their life.

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