Contino - can someone help me understand?

[red6419]

I've been reading the three orders that stemmed from the three levels of court for Contino and I'm not sure that I completely understand. Court #1 Divisional ordered CS $100 payment - slightly less then offset, Court #2 appeals ordered full table, and Court #4 Supreme Court ordered an amount somewhere between offset and full table but its not clear to me that the number they came up with is an easy or applicable way to other cases.

So who benefits from citing Contino? in a 50/50 situation is it payer or payee... And if its the payee - how does this work? How can you apply Contino? And if you're a payer in a 50/50 case is this the case you base your argument on?

 

[FB_]

I've been reading the three orders that stemmed from the three levels of court for Contino and I'm not sure that I completely understand. Court #1 Divisional ordered CS $100 payment - slightly less then offset, Court #2 appeals ordered full table, and Court #4 Supreme Court ordered an amount somewhere between offset and full table but its not clear to me that the number they came up with is an easy or applicable way to other cases.

So who benefits from citing Contino? in a 50/50 situation is it payer or payee... And if its the payee - how does this work? How can you apply Contino? And if you're a payer in a 50/50 case is this the case you base your argument on?

From my reading of it and my stbx attempting to use this case here is what I get out of it.

Basically a massive financial evaluation (very expensive) is undertaken to determine exactly how much each parent spends on the children. So basically it could be either the payor or payee depending on much money they each spend towards the children. Then based on that a child support number is calculated to equalize the expenses between parents.

When my lawyer first saw it in her paperwork was a little surprised. We now know from the way she proceeded her lawyer basically asked for the moon hoping I would be so scared I would give in to her ridiculous claims and roll over. In the end it didn't work and no Contino was ever completed.

 

[Janus]

Contino basically said that all 3 subsections of section 9 have to be considered, not just a straight offset. It rejected a formulaic calculation of child support in a shared custody situation.

Unfortunately, it also said that when moving from a full to a shared custody situation, that there was not necessarily any reason to change levels of CS, due to hideously faulty reasoning.

Overall, I think that Contino was mildly positive for payors, in that it said that CS should be based on actual spending on the children, rather than arbitrary numbers. Since offset is generally too high, that is overall a positive. I say only mildly positive since as best as I can tell, most judges don't seem to really understand that part of Contino, or are wilfully ignoring the directive of the supreme court, since 9(c) is routinely ignored.

 

[Mess]

1. Contino makes it final and unequivocal that in a shared custody situation, it is not appropriate for one party to pay the full CS guideline amount to the other party. Shared custody automatically activates section 9 and there is no other argument that needs to be made.
2. The earlier decision awarding full CS was therefore wrong. This issue does still come up, where a parent is at 40% exactly and there is a demand from the other parent, or in some instances a judge is not recognizing section 9. The Supreme Court Decision takes away any option to ignore section 9 or to require a party to justify it.
3. Contino establishes that section 9 stands on its own. Earlier decisions for example tried to tie it to the formula for calculating support >150k. Section 9 is not related to any other formula for calculating support.
4. Contino establishes that the straight "simple" setoff is the application of section 9(a). There were other formulas being applied. This is the difference of party A's guideline amount and party B's guideline amount.
5. For example numerous posters here on ODF have suggested other formulas. The point is that numerous formulas have been suggested and used in court over the years; Contino establishes the simple setoff.
6. Contino establishes that section 9(a) - the setoff- isn't the end of it. All of the subsections (a), (b), and (c) must be considered. In many cases the parties may settle using only the section 9(a) setoff and this is often recommended here on the boards, but it is not limited to 9(a) according to the SCC.
7. The parties' financial disclosure and respective budgets must be taken into account. If a judge does not consider them in their decision, then the decision may be appealed.
8. Finally Contino rejects the notion of a strict formula. In other words, "because an amount was calculated by Divorcemate" is not a legal argument.

Edit to add: I agree with Janus' posting above.Relating to my point #2, the SCC is more supportive of section 9 if you are Shared from the start.

 

[Tayken]

Contino basically said that all 3 subsections of section 9 have to be considered, not just a straight offset. It rejected a formulaic calculation of child support in a shared custody situation.

I wouldn't say it "rejected" it, per-say and that the former element of your argument in that sentence is more correct. It identified that the formula can't be unilaterally be applied to all situations.

It should have gone into more details on the reasons why a straight offset isn't always appropriate and more guidance on when it shouldn't would have been useful probably.

Unfortunately, it also said that when moving from a full to a shared custody situation, that there was not necessarily any reason to change levels of CS, due to hideously faulty reasoning.

"Hideously faulty reasoning"? That is a strong way to put it. I think the problem was that it was not as detailed as it should have been if it is going to form common jurisprudence that other justices rely upon. That maybe the "hideousness" of it maybe? But, when you have faulty reasoning it leaves a gap for others to fill the hole and refine it.

This is where you and I agree though Janus (I think), it should be a systemic change that addresses the gap and not for a litigant to bear the cost, expense and personal time to fill this gap left in jurisprudence. The government should really update legislation.

It is time, now that enough jurisprudence has been set, that legislation and not the system of case law needs to address the gaps in this area of law.

Overall, I think that Contino was mildly positive for payors, in that it said that CS should be based on actual spending on the children, rather than arbitrary numbers. Since offset is generally too high, that is overall a positive.

I do agree it is overall higher because the families that do engage in the FCSG definition of "shared parenting" per Section 9 are ones that have two higher-income parents. They have considerations at incomes of 150,000 in CS calculations but, I wouldn't disagree that they need to update for families and consider the combined gross income of both parents in some manner.

Maybe some levelling at a yearly gross income average of both parents some how. I have played with the numbers and I can't seem to find something that is truly fair to both parties and more importantly to the children.

Ultimately, it comes down to a third party having to manage the expenses at times. Some way of evaluating the true need of the "shared parenting" situation. But, I don't have a good answer or recommendation to solve the problem.

I say only mildly positive since as best as I can tell, most judges don't seem to really understand that part of Contino, or are wilfully ignoring the directive of the supreme court, since 9(c) is routinely ignored.

I don't agree entirely but, there is a clear lack of knowledge of how to apply the case law. This could possibly be solved by having justices actually be specialized in family law and only practising in family law. Give them the opportunity to actually focus on what they do every day rather than hear a murder trial one month and then a family law trial the next. Really, those two areas of law are not easy to cross over with.

It is like expecting a software developer to be able to develop equally as well in every software programming language. There are hundreds of them out there in use. No one can be an expert in every software development language. Maybe best to say, Mr. / Madame Justice is an expert in "programming" family law and that is it. They don't do criminal law.

But, then we spiral into the changes needed to "family law" which should really be done more by collaborative tribunals... (Just an idea.)

1. Contino makes it final and unequivocal that in a shared custody situation, it is not appropriate for one party to pay the full CS guideline amount to the other party. Shared custody automatically activates section 9 and there is no other argument that needs to be made.
2. The earlier decision awarding full CS was therefore wrong. This issue does still come up, where a parent is at 40% exactly and there is a demand from the other parent, or in some instances a judge is not recognizing section 9. The Supreme Court Decision takes away any option to ignore section 9 or to require a party to justify it.
3. Contino establishes that section 9 stands on its own. Earlier decisions for example tried to tie it to the formula for calculating support >150k. Section 9 is not related to any other formula for calculating support.
4. Contino establishes that the straight "simple" setoff is the application of section 9(a). There were other formulas being applied. This is the difference of party A's guideline amount and party B's guideline amount.
5. For example numerous posters here on ODF have suggested other formulas. The point is that numerous formulas have been suggested and used in court over the years; Contino establishes the simple setoff.
6. Contino establishes that section 9(a) - the setoff- isn't the end of it. All of the subsections (a), (b), and (c) must be considered. In many cases the parties may settle using only the section 9(a) setoff and this is often recommended here on the boards, but it is not limited to 9(a) according to the SCC.
7. The parties' financial disclosure and respective budgets must be taken into account. If a judge does not consider them in their decision, then the decision may be appealed.
8. Finally Contino rejects the notion of a strict formula. In other words, "because an amount was calculated by Divorcemate" is not a legal argument.

Edit to add: I agree with Janus' posting above.Relating to my point #2, the SCC is more supportive of section 9 if you are Shared from the start.

Excellent list Mess. I to do agree with you and Janus that Section 9 is easier to apply if it was there in the beginning. As soon as you establish full table amounts of child support it appears that the same concepts that govern "status quo" for access are leveraged for CS calculations. Even if the access schedule changes to FCSG's definition of "shared parenting".

Good Luck!
Tayken

 

[red6419]

Thanks so much for the responses!!

So in the case I'm talking about - 50/50 has been in place since the start. Straight off-set was used for the first 4 years of separation. There was also a monthly amount of SS paid in exchange for other benefits for a set period of time . That amount of SS has now ended and the payee is seeking for an significant increase to the off-set to make up for that SS ending. The payee has come up with some insane calculations to support the case (including a budget that contains $1000+ in food per month for a single person, a 13yo and a 7yo - who reside with the payee 50% of the time). The payee has 2 degrees (gained/paid for/supported by the payor while they were together) and yet doesn't make as much as the payee who doesn't have the same standard of education). The payee never qualified for SS, it was a trade off for other benefits.

both parties are self rep.

So how to use Contino to support the case that straight off-set should be used?

Is it appropriate and allowed for the payor to question the payee's budget and expenses? (the food isn't the only thing that's completely out of whack - there's unclaimed income - not reported to CRA, there's high-end hair cuts for the 13yo at a yorkville salon - not something that would have ever happened while the couple where together - expensive clothing - again beyond the means of both parents if they were together). The payee has also recently signed up for a post-degree program being run out of England - so cash flow has become a HUGE issue for the payee recently. Can the payor ask the payee to itemize and prove costs - the $1000 a month for food seems outrageous and over any averages via stats canada that I've been able to find.

The payor has recently moved in with someone and they share expenses which is another argument the payee is making. That the payor now how more money in which to pay the payee. How much does this play into the case when there is no claim for undue hardship? How can this be argued against?

The payee has created all kinds of financial scenarios and included them in the court paperwork, but there are all kinds of assumptions and inaccuracies in the numbers that are not called out. How does one argue against this type of thing? "you're a liar" no you're a liar"?

Off-set should be used, but it feels like an uphill battle to get there... when in this case it seems like the most reasonable case.

payee makes about 60K (including the unreported income) and payor makes about 90k including a discretional bonus per year. payee claims kids 100% on taxes, payor does not as per their agreement.

 

[Tayken]

Thanks so much for the responses!!

So in the case I'm talking about - 50/50 has been in place since the start. Straight off-set was used for the first 4 years of separation.

Unless there is a material change in circumstance for either party then the status quo will continue. The moving party to the material change in circumstance has to establish it. That is the first test to even having this matter heard.

A material change would be unemployment for example.

Something that is not... Someone wanting more child support payments and neither parent's income has changed and the past 4 years has worked.

So how to use Contino to support the case that straight off-set should be used?

You don't unless you can demonstrate a "material change in circumstance" that the situation is not appropriate. That is the first hurdle for the moving party in the matter.

Demonstrating a material change in circumstance is no simple task.

Good Luck!
Tayken