More Comments on Contino

David Giles did a write up of the Contino decision. Overall, I think it’s a pretty good analysis. However, I disagree with him on a couple of points.

David says that the decision has “opened the door to shared parenting by removing the reduction in child support argument.” With respect, I disagee. While there’s no longer an automatic presumption of a reduction in child support in cases of shared parenting, there’s still the possibility, and people will be alert to this.

David also says “I think the SCC has opened up a new controversy by confirming that the table amounts do not take into account any child related expenses (shelter, food, clothing, etc.) incurred by the payor parent at any level of access.” This always has been clear – it’s not new. See family law lawyer Gene Colman’s analysis of the Court of Appeal decision in which he eloquently states:

“In truth, the Federal Child Support Guidelines (and by consequence, the provincial counterparts) assume, in the actual design of the numerical entries for the table amounts, that the access parent incurs absolutely no costs for the child. (This has enormous ramifications with respect to the manner in which section 9 should be interpreted.) To prove the point that the Guidelines do indeed assume that the payor parent has absolutely no costs associated with the children, one need search no further than an overlooked publication authored by the Child Support Team from the Department of Justice Canada, Formula For the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report (CSR- 1997-1E) (Child Support Team, December 1997):[20] Indeed, the philosophical and theoretical underpinning of the entire standard table amount is premised upon the fact that the payor parent incurs absolutely no child-centred costs.”

In any event, it will be very interesting to see how trial and motions judges deal with this decision. In a sense for shared custody cases, we’re back to the pre-Guidelines calculation of child support, with all the benefits and problems that this situation means.

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