determining child support in shared...

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DETERMINING CHILD SUPPORT IN SHARED CUSTODYSITUATIONS AND RETROACTIVELY: AN UPDATE ON THESUPREME COURT OF CANADA'S DECISIONS IN CONTINO

ANDD.B.S.

I. INTRODUCTION

The decisions ofthe Supreme Court of Canada (the "Court") in Contino v. Leonelli-Contino,

2005 SCC 63 ("Contino") and D.B.S. v. S.R. G.; L.J. W. v. T.A.R.; Henry v. Henry; Hiemstra v.

Hiemstra, 2006 SCC 37, ("DBS")have provided guidance on the determination of child support

in two specific contexts: shared custody situations and claims for retroactive child support. This

paper will provide an overview ofthe Courts decisions in each of these cases. Secondly, the

paper will address procedural and evidential considerations in bringing applications for child

support in situations of shared custody and where retroactive support is claimed. Finally, the

paper will highlight some of the more recent decisions of the Saskatchewan courts in applying

these decisions of the Supreme Court of Canada.

Each of the Court's decisions in Contino and in DBS require an understanding ofthe Federal

Child Support Guidelines, SOR/97-175 (as amended), (the "Guidelines") which set out a

mandatory framework for assessing and determining the obligation ofparents to provide support

for their children in the context of separation and divorce. Specifically, the Guidelines are based

on the principle set out in section 26.1 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), (the

"Divorce Act") "that spouses have ajoint financial obligation to maintain the children of the

marriage in accordance with their relative abilities to contribute to the performance ofthat

obligation." A similar obligation is confirmed by section 3(1) of The Family Maintenance Act

which provides that "(e)very parent has an obligation to provide maintenance for his or her child

to the extent that the parent is capable of doing so." Further, the Guidelines are based on the

stated objectives set out under section 1:

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1. The objectives of these Guidelines are:

(a) to establish a fair standard of support for children that ensures that they continue tobenefit from the financial means ofboth spouses after separation;

(b) to reduce conflict and tension between spouses by making the calculation of child supportorders more objective;

(c) to improve the efficiency of the legal process by giving courts and spouses guidance insetting the levels of child support and encouraging settlement; and

(d) to ensure consistent treatment of spouses and children who are in similar circumstances.

Pursuant to subsection 15.1(3) of the Divorce Act, and subsections 3(3) and 4(3) of The Family

Maintenance Act, the court is required to assess child support in accordance with the Guidelines.

Pursuant to section 3 of the Guidelines there is a presumption that the amount of child support to

be ordered by the court is "the amount set out in the applicable table, according to the number of

children under the age of majority to whom the order relates and the income of the spouse

against whom the order is sought" together with "the amount, if any, determined under section

7". However, as the Court noted in its decisions in Contino and DBS respectively, where parties

have shared custody of any child for whom support is sought,.or where retroactive support is

being sought a more in depth analysis of the condition, means, needs and circumstances of the

parties and the children is required prior to the exercise of the court's discretion in the

determination of an award of child support.

II. SHARED CUSTODY AND SECTION 9 OF THE GUIDELINES: THECONTINO ANALYSIS

The facts in Contino are relatively straightforward. When the parties separated they entered an

agreement providing for joint custody of their child with the child's daily residence to be with the

mother. Pursuant to minutes of settlement, the father agreed to pay $563 per month. Several

years later, when the mother began taking a course, the parents agreed that the child would stay

with the father one additional night per week. The father applied to vary the amount of child

support on the basis that the extra night resulted in the child being with him 50 percent of the

time for purposes of the Guidelines. The motions judge agreed and reduced the child support to

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$100 per month. The decision was set aside by the Divisional Court and the father was ordered to

pay the full table amount of $688 monthly. The Ontario Court of Appeal reduced the amount to

$399 per month after consideration of s. 9. The mother's appeal to the Supreme Court of Canada

was allowed and the amount was returned to $500 monthly.

Section 9 of the Guidelines reads as follows:

9. Where a spouse exercises a right of access to, or hasphysical custody of, a child for not less than 40 per cent of the timeover the course of a year, the amount of the child support ordermust be determined by taking into account

(a) the amounts set out in the applicable tables for eachof the spouses;

(b) the increased costs ofshared custody arrangements;and

(c) the conditions, means, needs and othercircumstances of each spouse and of any child forwhom support is sought.

Section 9 requires a two-step analysis. Firstly, it must be established that "a spouse exercises a

right of access to, orhas physical custody of, a child for not less than 40 per cent of the time over

the course of a year". Secondly, if the 40 per cent threshold has been met, the court must then

determine the spouses' child support obligation by taking into accoun~ the provisions of

subsections 9(a) through (c). As Justice Bastarache, writing for the majority in Contino held, s. 9

creates its own regime for determining child support in the context of shared custody

arrangements. Section 9 structures the courts discretion in assessing an appropriate level of child

support that is "fair" in the circumstances of the parties and their child(ren). As Bastarache J.

noted at paragraphs 23, 24, 26 and 27:

23 ...s. 9 however expressly provides for a particular regimein cases of shared custody. This implies a departure from thepayor/recipient model that comes under s. 3. In fact, s. 3recognizes that the calculations under that provision will not applywhere "otherwise provided for under these Guidelines".. ..


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24 ...The court "must" determine the amount of child supportin accordance with the three listed factors once the 40 percentthreshold is met. There is no discretion as to when the section is tobe applied: discretion only exists in relation to the quantification ofchild support.....

26 Furthermore, s 9(a) refers only to the Table amounts, notthe Guidelines amounts, thus precluding consideration under thatparagraph of all of the discretionary factors that are allowed underthe Guidelines for departure from the Table amounts, as in the caseof s. 7 add-ons. This suggests that s. 9(a) is relatively narrow in itsscope and cannot form the exclusive basis for an award of supportunder s. 9 unless paras. (b) and (c) are taken into consideration....

27 The three factors structure the exercise of the discretion.These criteria are conjunctive: none of them shouldprevail. ..Consideration should be given to the overall situation ofshared custody and the costs related to the arrangement whilepaying attention to the needs, resources and situation of parentsand any child. This will allow sufficient flexibility to ensure thatthe economic reality and particular circumstances of each familyare properly accounted for. It is meant to ensure a fair level ofchild support.

Given that in Contino there was no issue but that the parties had a shared custody arrangement,

the Court did not have to address the issue of calculation of time to determine whether a shared

custody arrangement existed. However, other courts have addressed this issue. Given that the

40 percent threshold is critical to the application of s. 9 of the Guidelines, it is useful to review

the analysis ofthe determination ofthe 40 percent threshold prior to addressing the specific

interpretation ofthe application of s. 9 to a shared custody situation.

Although each case will have to be determined on its own set ofcircumstances, the favoured

approach to establishing the 40 per cent threshold is based on the amount of time that the non

custodial parent actually exercises access to or has physical custody of the child in question. As. th

Dawson J. held in Ryba v. Shoenroth (1998), 173 Sask. R 223,42 RF.L. (4 ) 97 (Q.B.) at para.

24:


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In assessing the amount oftime that a child spends with the noncustodial parent for the purposes ofs. 9, it is not the amount oftime relative to that spent with the custodial parent which isrelevant. Rather, the non-custodial parent is required to exerciseaccess to or have physical custody 40 per cent of the entire time.

This analysis was confirmed by McIntyre 1. in Jarocld v. Rice, 2003 SKQB 91 at para. 6 where

he suggested, following the decision of the court in Meloche v. Kales (1997),35 O.R (3d) 688,

35 RF.L. (4th) 297 (Gen. Div.), that there was a presumption that " ...the custodial parent starts

with 100 per cent of the total custodial time and the non-custodial parent must then demonstrate

that he or she exercises access or has physical custody for 40 per cent or more of the total

custodial time." This analysis was also adopted by Justice Sandomirsky in Dorosh v. Dorosh,

2004 SKQB 379, where he assessed the 60-40 rule on the basis of total parenting time over the

course of the year. The importance of assessing the parenting time over the course of an entire

year was underscored by Wright J. in Hus v. Hus (1998), 174 Sask. R 317 (Q.B.). In that case

Justice Wright noted that in determining whether s. 9 is invoked, the onus is on the parent

bringing the application to show that he or she cares for the child at least 40 per cent of the time

over the entire year. As Wright J. held in at paras. 4 and 5:

Section 9 specifically contemplates a shared custody situationwhere a parent has a right of access to or physical custody of achild for not less than 40 per cent of the time over the course of ayear. Clearly, this provision has been designed to eliminate thosesituations where the amount of time that a parent has available tospend with a child fluctuates over the course ofa year. Somemonths the time may be minimal, while in other months the timemay be considerable. If over the course of a year the amount oftime does not average more than 40 per cent, the section does notapply.

The onus is on the parent wishing to invoke the operation ofsection 9 to demonstrate to the court's satisfaction that a sharedcustody arrangement as contemplated by section 9 is in fact inplace, and has been, or will be in place over the course of a year.While it is not necessary that there be in all circumstances a writtenagreement or court order to this effect before the onus can bedischarged, the court should, in my opinion, exercise cautionbefore imposing a section 9 child support regime on what may be ashort term informal custody arrangement.


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This approach to the threshold issue would prevent a court from determining that the year could

be divided up into blocks and finding shared custody arrangements where the non-custodial

parent has the child for almost equal periods of time, for example during summer or Christmas

holidays, but where the cumulative parenting time of the non-custodial parent in the context of

one complete year does get past the 40 per cent threshold.

Although Justice Wright suggests that it may be appropriate for the court to assess the threshold

issue in the context of an informal arrangement, informal arrangements cannot supersede an

existing court order absent an application to the court to vary the existing order establishing the

parenting arrangement. In a recent Fiat in Stefv. Alexander, F.L.D. No. 173 of2005 - J.C.S.

October 5, 2006, Wilkinson J. held as follows:

...The threshold issue is whether, on an application dealing onlywith the issue of interim child support, the mother can argue that adifferent parenting arrangement prevails than the one dictated bythe Court in a prevailing order. It is only ifthat issue is resolved inher favour that the Court will turn to address the substantivequestion of whether a shared custody arrangement exists,triggering the application ofs. 9 of the Guidelines.

There has been no application made to vary the terms ofMaher J. 'sorder. In Bowering v. Bowering, 2001 SKQB 488, [2001] S.J. No.657 (Q.B.) (QL), the then Chief Justice was faced with a similarissue where the father asked that his child support obligations bedetermined on the basis that he exercised access to his daughter atleast 50% of the time, notwithstanding that the parentingarrangement ordered by the Court in an earlier application grantedhim access 36% ofthe time. The father swore that the child spentadditional time with him. Gerein C.J., said ifthat was the case, ithappened through the goodwill of the mother, and did notrepresent an entitlement. On an interim application, he was notprepared to move beyond the parameters of the existing order.Accordingly, s. 9 had no application.

Counsel for the mother respectfully disagrees with the correctnessofthat ruling, pointing out that s. 9 of the Guidelines says "Wherea spouse exercises a right ofaccess to, or has physical custody of,a child for not less than 40 per cent of the time over the course of ayear ...". As the argument goes, it is irrelevant what a court hasordered. What is important is the time the child in actual fact spent

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with the mother. The logic does not appeal to me. Could a supportpayor who wrongfully withheld a child, in contravention of anorder, seek accommodation on child support because the child wasconsequently in their physical custody more than 40% ofthe time?

In a more recent decision, namely Impey v. Thompson, 2005SKCA 114, (2005), 269 Sask. R. 301 (C.A.), the father soughtchild support because the mother was no longer exercising accessfor the 14 days a month to which she was entitled under theexisting divorce judgment, which gave the parents joint custodyand made no provision for child support. The mother claimed heraccess was not being granted because the father wasuncooperative. The chambers judge, in his reasons, stated thatwhen orders ofthe court are made with regard to access andparenting arrangements they are to be followed. Ifhe were toaccede to the father's request, he would effectively be varying theprior order. The father appealed.

The Court ofAppeal dismissed the appeal, effectively saying itwould be inappropriate to make a child support order on the basisof a parenting arrangement that was contradicted by an existingorder. The proper course of action would have been to bring aconcurrent application to vary the parenting arrangement, alongwith the child support.

I am of a similar view here. To accede to the mother's positionwould require me to make an order effectively varying the order ofMaher J. without an application having been properly brought forthat purpose. The parenting arrangement he ordered is one whichentitles the child to presumptive support under s. 3 of theGuidelines. ...

In terms of calcu,lating the actual time that a non-custodial parent exercises access to or has.

physical custody of a child, the courts will include the time that the child is in daycare, school or

sleeping to a parent's time, provided that that parent is the one who is responsible for the child

during that time. In Gore-Hickman (Hubbard) v. Gore-Hickman (1999), 187 Sask. R. 45, 177

D.L.R. (4th) 222 (Q.B.) Laing J. held that " ...calculation of hours, where the same can be

ascertained, is the best method of calculating the time a child spends with each parent during the

course of a year. As he noted at paragraph 12 of his fiat:


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While there may have been some divergence ofopinion withrespect to the interpretation of section 9 of the Guidelines shortlyafter they were introduced, the case law is now almost uniform inadopting the ordinary meaning ofthe words contained in section 9,and requiring that before a shared custody arrangement isestablished under the Guidelines, the person claiming such mustprove that he or she has access to the children at least 40 per centof the time over the course of the year. As noted by Veit J. inKolada v. Kolada (1999) A.J. No 609 (Alta Q.B.), judgment May18, 1999, at paragraphs 15-17:

The appropriate way to calculate the percentage of time achild is in the care of each of its parents, is the approachproposed by the mother: the total number of hours that thechild spends in the care of, orin the responsibility of, eachparent should be calculated rather than the days duringwhich the child spends part of the day with one of theparents....

. . .it is simpler, clearer, and more fair to account for thetime spent by the children according to the number of hoursthey spend with each parent or are within a parent'sresponsibility. For example, it is fair to calculate even thehours during which the children are sleeping because if thechild becomes ill overnight, it is the parent with whom thechild is residing who is responsible for comforting the childor obtaining medical assistance. Similarly, it is appropriateto include in the calculation the hours the children spend inschool because ifthere were a problem during school hoursthe school administration would contact first the parentwho has the responsibility during that period. Custodyincludes not only the hours spent in personal contract (sic),but also the hours when the parent is, so to speak, on call when the parent has responsibility without contact.

Although the calculation ofhours seems to be the preferred method for determining the 40

percent threshold issue, there are some shared custody arrangements where the math may not

work. A common example ofsuch situations is where the parents have joint custody ofthe

children, with delineated parenting time, but where each ofthe parents has a great deal of shared

time with the children. Such situations arise where both parents are "on-call" for school and

day-care, both take the children to medical, dental and eye examinations, both actively

participate in the children's activities, even to the extent that one of the parents, who may not be


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the "on-call" parent, actively coaches or teaches the children in their activities. Add to these

circumstances that each parent may spend approximately equal amounts of time with the

children during the children's major and minor school holidays. Each parent may maintain a

home that is furnished and accessorized with essential toys, sporting and recreational equipment

to accommodate the children, or they may share in the cost of these items and exchange them

across parenting times. They each may maintain wardrobes for the children, or otherwise share

in the cost ofclothing the children and each parent may share in the cost associated with gifts,

birthday parties, etc. Such parents, in addition to the actual time they spend "parenting" their

children, also spend time, among other things, planning their children's activities, participating in

the chauffeuring to and from activities, shopping for clothes, groceries and sporting goods. They

also participate in effecting repairs, maintenance and upkeep to their vehicle, home, furnishings

and the children's toys, equipment and other accessories.

Where the actual hours that a "non-custodial" parent spends exercising access to or having

physical custody of a child are not easily ascertainable, or where the parenting arrangement is

precariously close on either side of the line of the 40 per cent threshold, it may be possible to

identify the parenting arrangement as one which in "spirit" should be characterized as a shared

custody arrangement pursuant to section 9. The focus on the spirit of the shared custody

arrangement as a method for assessing whether the 40 per cent threshold has been reached was

acknowledged by Dawson J. in Ryba, supra, where at paragraphs 23 to 26, she considered at

length the decision ofRomaine J. in Dennett v. Dennett, (1998) A.J. No. 440 (Q.B.):

[23] In the case ofDennett v. Dennett, [1998] A.J. No.440(Q.L.)(Q.B.), Romaine J. also rejected the argument that thetime children were in school or with a babysitter should bededucted from the access time. However, she stated at para.11:

With respect, it is my view that Regulation 9 requires moreof a Court than a simple mathematical comparison ofthenumber ofhours in a year compared to the number of hoursof physical access exercised by the parent making a [sic]application for Regulation 9 relief. Such analysis may notrequire an inquiry into the sleeping patterns of children, asfeared by the court in Hall[(1997), 30 R.F.L. (4th) 333],supra at page 695 [pp. 336 and 337]) but ifthe situation


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establishes an unusually extensive pattern of access by asupport payor consistent with the concept of shared custodyor shared custody, the reality of the situation between theparties should be reviewed carefully.

She went onto say at paras. 12(f) and 13 and 14:

(f) Although I agree that it is not appropriate to deduct timespent in school or with a babysitter from the calculation oftotal access time, it is appropriate to take into account thequality oftime spent by each parent with the children, bothin determining whether the arrangement is in spirit asituation of shared custody and in determining whether infact there are increased costs of care of the children foreither or both parents that might make Regulation 9appropriate to the circumstances. In that regard, I note thatwhile Mr. Dennett is entitled to a greater number ofdays ofaccess to the children under the current arrangement than isMs. Dennett, the actual time spent by Mr. Dennett with thechildren during the week is restricted to early morning andto evening care. I also note that while Mr. Dennett has thecosts of a daycare provider, he does not have the costs of atleast two meals a day for the children, while Ms. Dennetthas the costs of at least seven meals a week for thechildren....

I find that the present case is in spirit and in reality a caseof shared custody as envisaged by Regulation 9 of theGuidelines. It is still necessary for Ms. Dennett to show thatshe can meet the 40% test set out in Regulation 9, no matterwhat the spirit of the arrangement between the parties. Byone method of calculation, she exceeds the test. By theother, she falls slightly short ....

[E]ach of the many variations and circumstances of accessand custody' should be analysed to determine whether thesituation is in spirit and reality a situation of sharedcustody, as well as whether it passes the threshold 40% testset out in Regulation 9 by a reasonable method ofcalculation. This gives meaning to the words ofRegulation9(c), that the amount of the child support order must bedetermined by taking into account "the condition, meansneeds and other circumstances of each spouse and of anychild for whom support is sought". The focus should not be


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on the method ofcalculation, but on whether the method ofcalculation is reasonable in the particular situation takinginto account the circumstances ofthe parties.

Dawson J. then addressed this analysis in the context of the circumstances of the case before her

and held at paragraphs 25 and 26:

One of the assumptions underlying the table amounts is thatbecause the custodial parent has physical custody of the childrenalmost all of the time, the majority of costs are being incurred bythat parent. The intent of s. 9 is to provide a means ofallocatingthe costs of raising the children where, because of the significantproportion of time spent by the children with each of the spouses,the assumptions underlying the table amounts are inappropriate.Where actual access exercised amounts to 40 per cent of the time,there will presumptively be increased costs to the access parent. Inassessing the amount oftime that a child spends with the noncustodial parent for the purposes of s. 9, it is not the amount oftime relative to that spent with the custodial parent which isrelevant. Rather, the non-custodial parent is required to exerciseaccess to or have physical custody 40 per cent of the entire time.Clearly the focus of s.9 is on the payor spouse and the issue to beexamined is whether he/she has access to or physical custody ofthe children 40 per cent of the entire time. In this instance thefather does not have access to or physical custody of the childrenfor 40 per cent of the time. His method ofcalculation is notreasonable.

Even if! were to find the father had the children 40 per cent of thetime, I would not find that these parties had an arrangement whichis in spirit a situation of shared custody, as outlined in Dennett v.Dennett. Other than both parents maintaining a house for thebenefit ofthe children, the father has not had increased costs. Theevidence is clear that the mother bears all or almost all of theresponsibility and costs associated with the children. She bears thecost of feeding the children for the majority of the time; the costsofclothing the children, the costs of the children's recreation andmedical needs (except the extent the father is reimbursed); thecosts of transporting and chaperoning the children's extracurricularactivities; the cost of arranging child care; the cost ofeducation;and, the responsibility for the children all of the time except whenthey are physically with the father. The father argued that the costsof raising these children were shared approximately equally


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between himself and the mother. But the evidence was clear thatthe mother bore almost all of the costs of raising the children. I donot find that the assumptions underlying the table amounts areinappropriate.

I find that the father does not have access to or physical custody ofthe children for 40 per cent of the time. As such, the appropriatedetermination of child support is based on s. 3 and the applicationof the appropriate table.

However, focussing overly on the "spirit" of the parenting arrangement may also negatively

impact on the parenting arrangement and result in greater litigation between the parties. These

types of situations may be those that Prowse J.A. was contemplating in Green v. Green (2000),

75 RC.L.R (3d) 306,6 RF.L. (5th) 197 (C.A.) at paragraphs 21 to 24 where she noted:

A review of many of the cases decided under s. 9 reveals that thequestion ofwhether an access parent has met the 40 percentthreshold necessary to permit the court to depart from theGuidelines tables is one that has generated considerable litigation.In some cases, parents have kept a minute- by-minute account ofthe time they have spent with their children (sometimes reflected inpages of computer print-outs) in order to make, or refute, a claimthat s. 9 applies. Children's waking time, sleeping time, schooltime, time with grandparents and friends, sick time, and so on,have been recorded and analyzed to determine whether theyconstitute part of a parent's access time under s. 9. Trial judgeshave justifiably bemoaned the unfortunate focus ofthese efforts,which have resulted in a fertile ground for dispute between eventhose parents who formerly were able to agree to a shared custodyarrangement.

The negative impact which section 9 has generated in this regardwas well-stated by Master Joyce in Hall v. Hall (1997), 35RC.L.R (3d) 311 (RC. Master), at para. 11:

I must say that I am distressed that one of the results of thisnew scheme oflegislations [sic] seems to be that courts arenow required to track the hours which the children spendunder the care ofor subject to the primary responsibility ofone parent or the other. I have to question whether such anexercise is in the best interests of the child. The figure of


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40% seems quite arbitrary. Up to that magic number thecourt has no ability to recognize access costs, which mightbe quite significant, unless the matter can be brought withinthe "hardship" section of the Guidelines (s. 10). Once themagic number is reached the court is given a widediscretion to apportion the costs associated with the care ofthe children in accordance with all relevant financialcircumstances of the parties. I have a very real concern thatthis new regime may encourage the custodial parent todiscourage the maximum contact between the children andthe other parent for fear of the economic consequenceswhich may result. The custodial parent, or the parent withprimary responsibility for the care of children, may bereluctant to agree to an order for "liberal and generalaccess" unless the order makes it clear that the generositydoes not exceed 40%. I question whether this is in the bestinterests of the children.

Similarly, access parents have been accused of seeking increasedaccess solely to reduce child support payments, rather than out of adesire spend more time with their children.

Additional problems arising from focusing on the counting ofhours in order to bring a case within section 9 of the Guidelineswere also identified by Madam Justice Eberhard in Rosati v.Dellapenta (1997),35 R.F.L. (4th) 102 (Ont. Gen. Div.), at para. 5:

This crass focus concerning the number of hours spent toldme nothing whatsoever about who bears the expenses ofparenting. The 40% delineation offers no clue as to howexpenses of housing, feeding, clothing and other suchexpenses usually subsumed in the regular expenses ofchildren that are addressed by the table amounts in theGuidelines, are paid. Many access parents who have thechildren somewhat less than 40% of their hours still bearthe expense ofproviding child suitable accommodation andmust nevertheless pay the table amount. Time tells me littleabout who arranges for the children's material needs.

Therefore, rather than simply focusing on the calculation of hours to determine whether the 40

percent threshold has been met, parties should also seek to provide the court with evidence as to

each parents involvement in the day-to-day parenting ofthe child(ren) in terms ofthe nurturing

time that is commonly associated with time spent exercising access or having children in a


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parent's physical custody or being the parent on-call at a given time. In this regard, parties

seeking to enter into shared custody arrangements should also recognize, as have the courts, that

these arrangements are often more costly. As Wright J. noted in Orth v. Orth (1997), 176 Sask.

R. 192 (Q.B.),

The factors to be considered by the Court and enumerated insection 9 of the Guidelines recognize that there is an increased costassociated with shared custody as well as a joint obligation of theparents to contribute to that cost in accordance with their ability todo so. Maintaining two homes in which the children will reside forapproximately equal time results in many duplicated expendituresand by necessity, increases the overall cost ofproviding for thechildren. While reference must also be made to the amountotherwise payable by each spouse pursuant to the applicable table,a set-offof those amounts is not automatic as is the case insituations governed by section 8 of the Guidelines. Furthermore,the mere existence of a shared custody arrangement does notnecessarily lead to a reduction in the amount of support that onespouse would pay absent such an arrangement. There is a broaddiscretion in the Court to consider the means, needs andcircumstances of the children and of the spouses.

Given the increased costs of raising children that most shared custody arrangements entail,

parties should seek to minimize, as much as possible, the duplication of expenses in both

households. As Dawson J. recognized in Ryba, supra., the "spirit" of shared custody

arrangements must, to some degree, involve a level of co-operation between the parties, not just,

but also in terms of the equitable sharing of the family resources between both parents'

households in meeting the overall needs of the children. Arguably, the inclusion under the

Divorce Act of subsections 15.1(5) through (8), rather than under the Guidelines, may have been

in the hope that at the end of the day parents would be in a better position to come to agreements

on these matters, reasonably and responsibly taking into account the best interests of their

children, as opposed to relying on the court's discretion to impose its own brand of solution.

With respect to the Court's analysis ofs. 9 of the Guidelines in Contino, the Court rejects a

number ofpropositions that had previously been applied to s. 9 by lower courts throughout

Canada. Professor Rollie Thompson in his Annotation to the Contino decision ((2005), 19

R.F.L. (6th) 277 succintly summarizes the rejected propositions as follows:


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(1) No Presumption ofTable Amount. This buries, once and for all,the argument by the wife that was accepted -- amazingly -- by theOntario Divisional Court. Section 9 is not a deviation or departureprovision, like ss. 3(2)(b) or 4, which require the payor to convincethe court to depart from the presumptive full table amount (plusany section 7 contributions). Section 9 explicitly creates a separateand different method to determine support in shared custody cases

. (paras. 22-29).

(2) No Automatic Reduction for Shared Custody. Equally, there isno presumption in favour of reducing child support downwardfrom the Guidelines amount. After a proper application of s. 9, acourt may conclude the full amount is justified. The "deviation" isone ofmethod, not amount (paras. 30-31). This clear statement bythe Court may help to deter some ofthose parents who seek sharedcustody primarily for an expected reduction in child support.

(3) No Formula Is Mandated. A "formulaic" or "mathematical"approach, such as that employed by the motions judge, is rejected(paras. 38, 74). Even the simple set-off "serves as the startingpoint, but it cannot be the end ofthe inquiry. It has no presumptivevalue." (para. 49) "Any attempt to apply strict formulae will fail torecognize the reality ofvarious families." (para. 82)

(4) No Use ofPro-rated Set-off. The straight or simple set-off oftable amounts is the proper starting point under s. 9. The pro-ratedset-off should not be used, as it was here by the motions judge, asit has a disproportionate impact upon the lower income spouse(para. 44).

(5) No Multipliers. Multipliers of any kind are rejected, whether 50per cent or any other percentage, as they make assumptions aboutadditional costs. The Ontario Court ofAppeal was wrong to resortto such a multiplier (paras. 58- 61). The Guidelines do not supporta multiplier as currently drafted (para. 61), there is no research tosupport any multiplier (para. 67), and the Department of Justicedoes not recommend the use of a multiplier (para. 67). At paras. 62to 66, the Court reviews the case law and literature against the useofmultipliers. An adjustment for increased costs is alreadyreflected in the use of the full (rather than pro-rated) table amountsin the simple set-off.

(6) No Need to Separate Out Section 7 Expenses. Section 9(c)confers a broad discretion, one which allows direct examination ofspecial or extraordinary expenses along with all the other factors.


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In a shared custody case, section 9(c) is "conspicuously broader"than s. 7 (para. 71), which enables a court to allow expenses thatwould not fit the exhaustive listing of s. 7. Like the mother's RESPpayment in this case, I suppose.

(7) No Need to Resort to Section 10. The Ontario Court of Appealwas wrong to suggest that a reduction in support under s. 9 mightcause "undue hardship", which in turn might require the use of s.10 of the Guidelines. A court has full discretion under s. 9(c) to dothe right thing, to exercise its discretion to avoid undue hardship,apart from "an extraordinary situation" (para. 72).

Further, in his Annotation to the Contino decision, Professor Thompson summarizes the step-by

step analysis laid out by Justice Bastarache as follows:

(1) Determine the Simple Set-OffAmount. The starting point unders. 9(a) is the simple or straight set-off of each parent's table amountfor the number of children involved in the shared custodyarrangement. No pro-rating, no multiplier (paras. 40-51).

(2) Review the Child Expense Budgets. A court must look at theparents' actual spending patterns, based upon child expensebudgets, and not just make assumptions about spending. Further, acourt should look at all the expenses of both parents under s. 9(b):not just the additional expenses resulting from an increase inaccess, not just the variable or fixed expenses, not just theexpenses of the recipient parent. Under s. 9(b), a court has twoconcerns: (i) the overall increased total costs of child-rearing forboth parents, especially duplicated costs; and (ii) anydisproportionate assumption of spending by one parent or the other(paras. 52-53). These expenses should be "apportioned betweenthe parents in accordance with their respective incomes" (para. 53),to "verify" the set-off (para. 77) and to determine "the need forsignificant adjustments to the set-off amounts" (para. 78).

(3) Consider the Ability ofEach Parent to Bear the IncreasedCosts ofShared Custody and the Standard ofLiVingfor theChildren in Each Household. The consideration of these twofactors lies at the heart of the s. 9(c) analysis, set out at paras. 5472, especially paras. 69-70. In assessing each parent's ability tobear the increased costs of shared custody, a court should look atthe income levels of each parent, the disparity in incomes, and theassets and liabilities of each. The child's standard of living in eachhousehold is "particularly useful for the exercise ofdiscretion in a


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predictable manner" (para. 70). The children should not experience"a significant variation in the standard ofliving ... as they movefrom one household to another" (para. 51). As the term"household" is used, the incomes and resources of new partners ineach household would presumably be relevant.

(4) Distinguish Between Initial Orders or Agreements andVariations. "An application that represents a variation of a priorsupport arrangement will usually raise different considerationsfrom a s. 9 application where no prior order or agreement exists."(para. 55) A recipient parent "may have validly incurred expensesbased on legitimate expectations about how much child supportwould be provided", especially for fixed costs (para. 55).

As emphasized above, it is often the case that a shared custody arrangement does not actually

result in a reduction of the costs associated with the care and upbringing ofthe children. For

many families making ends meet on a month to month basis is a struggle looking after the

expenses in one household let alone two. To some extent section 9 ofthe Guidelines allows for

the consideration of this balance. At the end of the day, as Justice Bastarache notes at paragraph

33 of the decision, what the court should be seeking to achieve is a fair level ofchild support

having regard for the overall objectives of the Guidelines:

...Parliament, in adopting s. 9, deliberately chose to emphasize theobjectives of fairness, flexibility and recognition of the actualconditions, means, needs and other circumstances of each spouseand of any child for whom support is sought, even if to thedetriment ofpredictability, consistency and efficiency to somedegree. The legislator recognized in s. 9 that there is a wide rangeof situations of shared custody depicting the reality ofdifferentfamilies.

Having regard for these wide ranges of situations coupled with the concern that a reduction in

child support payable to a recipient parent may result in significant differences of standards of

living between the two parental homes, Bastarache J. places a heavy onus on parties bringing s. 9

applications to ensure that evidence relating to particularly to s. 9(b) and (c) is lead. As he notes

at paragraphs 55-57:

SURVIVING FAMILY LAW May 2007

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The analysis should be contextual and remain focussed on theparticular facts of each case. For example, an application thatrepresents a variation of a prior support arrangement, will usuallyraise different considerations from a s. 9 application where no priororder or agreement exists. In the former case, the recipient parent,when he or she first got custody, may have validly incurredexpenses based on the legitimate expectations about how muchchild support would be provided. These expenses should be takeninto consideration and a court should have proper regard to thefixed costs of the recipient parent.

.. .it is important that the parties lead evidence relating to s. 9 (b)and (c). This evidence has often been lacking, with the result thatthe courts have been forced either to make assumptions aboutincreased costs, ...or to dismiss the application under s. 9 for lackof an evidentiary foundation.

. .. In my opinion, coUrts should demand information from theparties when it is deficient.

Ultimately, where evidence is lacking, Justice Bastarache suggests that courts could seek to rely

on the parties' financial statements and child expense budgets, or alternatively adjourn the

. motion to provide additional information. He rejects, as noted above, either the use of a

multiplier or the application of "common sense" assumptions about costs incurred by a payor

parent together with a multiplier.

Given this analysis, parties should consider providing the court with the following evidence on a

s. 9 application:

1. The table amount of support for each parent having regard for their respective

incomes. To determine income, regard should be had for the documents to be

disclosed and produced pursuant to section 21 of the Guidelines and the

calculations of income in accordance with sections 16 through 19 of the

Guidelines.


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2. Actual spending patterns ofthe parents and child expense budgets:

a. Expense budget showing the expenses incurred by both parents prior to the

shared custody arrangement. This would include a budget of expenses

incurred prior to separation to show spending patterns during the marriage or

relationship and a budget of expenses after separation including where the

shared custody plan is not implemented immediately after separation, the

expenses incurred after separation and before the shared custody

implemented. If a variation application any reliance by the recipient parent in

incurring an expense based on prior level of child support paid by payor.

Breakdown of any decreased costs ofrecipient parent due to increased

parenting time ofpayor parent. Breakdown of any increased costs ofpayor

parent due to increased parenting time;

b. Expense budget for each parent focussed on the expenses they incur for any

child for whom support is sought, including portion of shelter costs, food,

clothing, medical, dental, pharmaceutical, education and activity expenses

(including tuition, books, registration, equipment costs and costs associated

with driving the children to activities), day care/babysitting expenses, gifts,

vacations, etc.

3. Ability of each parent to bear the increased costs ofthe shared custody

arrangement:

a. Sources of income available to both households, including income of any new

spouse of either parent, GST Rebates, Child Tax Credits, Child Tax Benefits;

b. Disparities of incomes ofboth parents together with evidence as to the cause

of such disparities, for example on parent may be pursuing re-training, new

education, suffering from a disability, etc.;


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c. Assets ofboth parents, including the extent to which capital base of either

parent is used to support the costs of shared custody;

d. Liabilities ofboth parents, including the extent to which any liabilities have

been incurred to support the shared custody arrangement;

e. Any other support obligations of either parent;

f. Gifts or contributions made by third parties to either parent;

4. Standard of living for the children in each household, including information as to

other children in the household, other adults in the household, style and type of

home, access to amenities such as local parks, schools, activity centres, access to

electronics, computers, sporting/recreational equipment, name-brand clothes,

types of vacations, etc.

At the end ofthis paper, Appendix "A" provides a summary of the Saskatchewan cases that have

considered applying the Contino analysis to shared custody child support applications. As is

noted in the Appendix, for the most part the courts have not had the necessary evidence to make

a determination in those cases under s. 9.

III. RETROACTIVE CHILD SUPPORT: THE DBS ANALYSIS

Prior to the decision of the Court in DBS a number of cases had dealt with the issue ofwhether

retroactive variations in child support were appropriate however judicial authority since the

Guidelines had come into force had been divided in its approach. Cases coming out of the

British Columbia and Ontario appellate courts had traditionally favoured a more restrictive

approach focussing on the notion of fair play between competing parents and a presumption

against retroactive orders. The norm was that retroactive support would not be awarded to a

date prior to the date of application unless certain factors were met. This approach was

contrasted with the more modem child centred approach coming out of the Alberta Court of


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Appeal which attempted to put the interests ofthe child first by establishing a presumption for

retroactive orders. According to this approach, the payor's obligation arises as soon as their

income goes up regardless ofwhether there has been an application by the payee to vary. The

Court in DBS accepted the premise underlying the Alberta model that child support was the right

of the child and irrespective of any legal obligation, parents had a moral obligation to support

their children based on their ability to do so. Thus, the court retains the jurisdiction to assess

child support retroactively in appropriate cases.

As the Court noted in DBS, sections 15.1 and 17.1 of the Divorce Act, R.S.C., 1985, c.3 (2nd

Supp) give the court the discretion to determine entitlement and quantum of child support having

regard to the joint obligation of the parents to financially contribute to the care and upbringing of

the children. These sections read in part as follows:

15.1(1) A court ofcompetent jurisdiction may, on application byeither or both spouses, make an order requiring a spouse to pay forthe support of any or all of the children of the marriage.

(2) Where an application is made under subsection (1), the courtmay, on application by either or both spouses, make an interimorder requiring a spouse to pay for the support of any or allchildren of the marriage, pending the determination of theapplication under subsection {l).

(3) A court making an order under subsection (1) or an interimorder under subsection (2) shall do so in accordance with theapplicable guidelines.

(4) The court may make an order under subsection (1) or aninterim order under subsection (2) for a definite or indefiniteperiod or until a specified event occurs, and may impose terms,conditions or restrictions in connection with the order or interimorder as it thinks fit and just.

(5) Notwithstanding subsection (3), a court may award an amountthat is different from the amount that would be determined inaccordance with the applicable guidelines ifthe court is satisfied

(a) that special provisions in an order, a judgment or awritten agreement respecting the financial obligations ofthe spouses, or the division or transfer of their property,


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directly or indirectly benefit a child, or that specialprovisions have otherwise been made for the benefit of achild; and(b) that the application of the applicable guide}ines wouldresult in an amount of child support that is inequitablegiven those special provisions.

(6) Where the court awards, pursuant to subsection (5), an amountthat is different from the amount that would be determined inaccordance with the applicable guidelines, the court shall record itsreasons for having done so.

(7) Notwithstanding subsection (3), a court may award an amountthat is different from the amount that would bedetermined inaccordance with the applicable guidelines on the consent ofbothspouses if it is satisfied that reasonable arrangements have beenmade for the support of the child to whom the order relates.

(8) For the purposes of subsection (7), in determining whetherreasonable arrangements have been made for the support of achild, the court shall have regard to the applicable guidelines.However, the court shall not consider the arrangements to beunreasonable solely because the amount of support agreed to is notthe same as the amount that would otherwise have been determinedin accordance with the applicable guidelines.

17.1(1) A court of competent jurisdiction may make an ordervarying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on applicationby either or both former spouses; ...

(4) Before the court makes a variation order in respect ofa childsupport order, the court shall satisfy itself that a change ofcircumstances as provided for in the applicable guidelines hasoccurred since the making ofthe child support order or the lastvariation order made in respect of that order.

(6.1) A court making a variation order in respect of a child supportorder shall do so in accordance with the applicable guidelines.

(6.2) Notwithstanding subsection (6.1), in making a variation orderin respect of a child support order, a court may award an amountthat is different from the amount that would be determined inaccordance with the applicable guidelines if the court is satisfied


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(a) that special provisions in an order, ajudgment or awritten agreement respecting the financial obligations ofthe spouses, or the division or transfer of their property,directly or indirectly benefit a child, or that specialprovisions have otherwise been made for the benefit of achild; and(b) that the application of the applicable guidelines wouldresult in an amount of child support that is inequitablegiven those special provisions.

26.1(2) The guidelines shall be based on the principle that spouseshave ajoint financial obligation to maintain the children of themarriage in accordance with their relative abilities to contribute tothe performance of that obligation.

In order to consider an application for retroactive support the court must do two things. First, it

must use its discretion to determine whether an award for retroactive support is appropriate.

Second, it must determine the most appropriate date for the commencement of a retroactive

order. Depending on the circumstances, this date may be as early as the date of the birth ofthe

child, the date that notice for disclosure of financial information was requested or the date of

service of an application seeking child support. The Court in DES provides guidance on how to

assess these issues. To understand the Court's analysis in DES, a brief summary of the factors

set out in the competing lines of authority established by the British Columbia Court of Appeal

and the Alberta Court ofAppeal may be helpful.

The British Columbia Court ofAppeal in L.s. v. E.P., supra, took a strict approach to the

awarding of retroactive child support based on judicial discretion and policy concerns. Based on

existing jurisprudence Rowles J.A. set out a number of non-exhaustive factors to consider in

awarding retroactive orders prior to the date ofapplication including:

1. Need on the part of the child and corresponding ability to pay on the part of the non

custodial parent;

2. Some blameworthy conduct on the part of the non-custodial parent, such as incomplete or

misleading financial disclosure;

3. Need on the part of the custodial parent to encroach on capital or incur debt;


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4. An excuse for the delay in bringing the application; and

5. Notice to the payor parent of an intention to pursue support.

Those factors mitigating against a retroactive order are:

1. The order would cause an unreasonable or unfair burden to the non-custodial parent,

especially to the extent that such a burden would interfere with ongoing support

obligations;

2. The only purpose of the award would be to redistribute capital or award spousal support

in the guise of child support; and

3. A significant, unexplained delay in bringing the application.

In her decision, Rowles I.A. wrote at paragraph 42 that "[w]hile it seems clear that there is

jurisdiction to order retroactive child maintenance, it seems equally clear that the discretion to

make such an order is not to be exercised as a matter of course". Therefore, using the above

factors, it is only in 'exceptional' or 'appropriate' circumstances that a child support order may

be made retroactive beyond the date notice was given because, first, it is considered unfair to the

payor to make them pay an amount they are not prepared for, and two, if a child support order is

already in place the payor should be able to rely on its continuation in the absence of some

special circumstance.

The Alberta Court of Appeal decided three cases in 2005 (the "Trilogy") adopting an entirely

different approach to retroactive orders. The premise of the decisions in S. (D.B.) v. G. (8.R.),

2005 A.B.C.A 2; Henry v. Henry, 2005 A.B.C.A 5; and L.J W v. T.A.R., 2005 AB.C.A. 3, was

that the existing law relating to retroactive child support failed to reflect the primary objective of

the Federal Child Support Guidelines which is to ensure appropriate support for children from

both parents. This objective imposed a presumption favouring retroactive child support. In S.

(D.B.) v. G. (8.R.), supra, Papemy I.A disagreed with the factors iterated in L.8. v. E.P., supra,

and set out a list of new considerations in determining the date upon which a retroactive order

should commence:


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1. The obligation to pay child support derives from one's status as a parent.

2. The focus is on the payor's income not on the child's needs and the parent's ability to

pay.

3. The Guidelines focus is not blameworthy conduct but the payor's income and increases

in that income.

4. A custodial parent's encroachment on capital is not a prerequisite for a retroactive order.

The non-payment of appropriate support by a payor equals deprivation in its own right.

5. Notice by a payee of an intention to pursue child support is not a prerequisite of a

retroactive order.

The Trilogy decisions reflected a significant change from the existing case law set out by the

B.C. Court ofAppeal. Five important points were established: (1) that there is a presumption in

favour of retroactive child support; (2) that need on the part of the child is irrelevant; (3) that a

payor's obligation to pay increased child support arises at the date their income goes up

regardless ofwhether the payee parent has requested it disclosed or not; (4) that the presence of

or lack ofblameworthy conduct is immaterial; and (5) that characterizing payments of

retroactive child support as wealth transfer is an attempt to attack the legitimate entitlemen,t of

the children in the care of the payee.

The Court in DRS made, among others, the following significant findings essentially promoting

an analysis of retroactive child support that combines aspects of the factors iterated in L.S. v.

E.P. and the Trilogy cases:

1. Parents have an obligation to support their children in a manner commensurate with their

income. The obligation of parents to support their children and the children's right to be

supported by their parents exists independent of any legislative enactment or court order

which is affirmed by s. 26.1 of the Divorce Act recognizing that parents " ...have a joint

financial obligation to maintain the children of the marriage in accordance with their

relative abilities to contribute to the performance ofthat obligation". (paras.38, 39, 40, 48

and 54)


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2. The Guidelines constituted a break from a "needs-based" assessment of child support in

favour of a model where child support became a function of two factors - the number of

children being supported and the payor's income. Accordingly, the level of child support

will fluctuate based on the payor parent's income. (paras.42, 43, 44 and 54)

3. Provinces have the jurisdiction to establish their own regulations with respect to child

support matters not involving divorce. (paras. 52 and 53)

4. The Guidelines do not require automatic disclosure ofchanges in a payor's income.

(para. 58)

5. Upon application being made to the court for retroactive child support, the court

generally has the jurisdiction to make an award of child support retroactively, including

in situations where a payor parent has been paying based on a prior court order (paras.

62-74); where a payor parent has been paying based on a previous agreement between the

parents (paras.75-79); and where there has not previously been a court order for child

support to be paid (paras.83-84).

6. The court does not have the jurisdiction to make an award of child support retroactively

with respect to a child who no longer has status as a child of the marriage. (paras. 86-90)

7. Prior to making a retroactive award ofchild support the court should have regard for the

following factors:

(a) Reasonable excuse for why child support was not sought earlier (paras. 100-104):

(i) Recipient's delayin seeking child support not presumptively justifiable.

Look for reasonable excuse for delay (fear ofpayor, lack of financial

means to apply). Recipient should not be encouraged to delay;

(ii) Need to balance delay against payor's interest in certainty.


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Conduct of payor parent (paras. 105-109):

(i) Any conduct is blameworthy to the extent that it "privileges the payor

parent's own interests over hislher children's right to an appropriate

amount of support." Some examples: hiding income increases from

recipient parent, using intimidation to dissuade recipient parent from

bringing application for child support and misleading recipient parent into

believing that child support obligation is being met.

(ii) Blameworthy conduct may be excused by: a reasonably held belief that

payor is meeting support obligation, following previous court order or

agreement absent a change in circumstances, and payor contributing to

expenses over and above statutory obligations.

)

(c) Look at present and past circumstances of child (paras. 110-113)

(i) Is the child's standard ofliving approximately that he/she enjoyed during

mamage;

(ii) Have the child's needs been met by the current level of support;

(iii) Has the child undergone hardship in the past;

(d) Will the award of retroactive support result in hardship to payor, payor's new

family, to child or to the recipient? (paras. 114-116)

8. Once a court has determined that a retroactive award is due, the court should assess the

award retroactively to the date of "effective notice", being "any indication by the

recipient parent that child support should be paid, or if it already is, that the current

amount ofchild support needs to be re-negotiated....all that is required is that the topic is

broached" (paras. 118-125) other than if there is blameworthy conduct on the part of the

payor parent, whichmay move the order back in time to when the circumstances changed

materially, up to three years in the past.


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9. The quantum of the retroactive award should be based on the statutory regime, but does

not require blind adherence to that regime. Consideration should be given, among other

things, to issues of undue hardship and unreasonable delay. (paras. 126-130)

10. In every case, the court should consider all relevant circumstances and attempt to balance

the payor's interest in certainty with the need for fairness and flexibility. (para. 133)

Appendix "B" to this paper highlights a number of decisions of the Courts in Saskatchewan that

have addressed the issue of retroactive child support based on the Supreme Court of Canada's

decision in DRS. Given the subjective/objective analysis set out in DBS counsel are advised to

review the cases carefully prior to adopting them for precedential value.

IV. CONCLUDING COMMENTS

This paper has attempted to highlight some aspects of the analyses of the Supreme Court of

Canada in Contino and DRS with respect to the issues of assessing child support in shared

custody arrangements and retroactively assessing child support. As the analysis of the Court in

Contino demonstrates, in assessing the merits of a shared custody arrangement, care must be

taken in presenting complete evidence to the court, including not just the amount of time the

children spend in the respective care of either party, but also identifying the parties' incomes and

the circumstances surrounding the various and sundry expenses each of the parents incur in the

care and upbringing of the children contrasting the before shared custody situation to the post

shared custody situation. With respect to retroactive child support, the court has the jurisdiction

to make an award of retroactive child support in appropriate circumstances having regard for the

factors outlined by the Court in DRS. .As the above discussion suggests, the court has very broad

discretion in both of these areas to impose the child support order that the court deems

. appropriate.

As a final note, if counsel is contemplating bringing an application under s. 9 of the Guidelines

or is seeking retroactive child support in Saskatchewan, regard should be had for the notice and

document filing requirements under Rules 602, 610, 611, 612 and 640 of The Queen's Rench


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Rules. Where evidence is lacking, or not forthcoming from the opposite side, consideration

should also be given for the use of Rules 616 and 617. Further or better evidence may be

obtainable through a thoughtfully crafted Notice to Disclose and/or Notice to Reply to Written

Questions. As noted above, and in the cases cited in the Appendices to this paper, our courts

have lamented on numerous occasions as to the lack of evidence being presented by the parties

on child support applications involving shared custody arrangements. Often, evidence is lacking

as to the extent to which a parent may be exercising access or caring fora child for whom

support is sought 40% of the time or more. And, evidence is often not presented relating to the

analysis required to assess the increased costs of shared custody arrangements and the condition,

means, needs and other circumstances of each spouse and of any child for whom support is

sought. (see for example: Wouters v. Wouters, 2001 SKQB 142 at para. 21; Hubic v. Hubic

(1997), 157 Sask. R. 150 (Q.B.); and Mertler v. Kardynal (1997), 161 Sask. R. 151 (Q.B.)).

Prowse J.A. (cited with approval by the Court in Contino: see para. 63) underscored the

importance ofpresenting evidence in a section 9 application in the decision Green, supra. at para

35:

In order to apply section 9 however, it is important that the partieslead evidence relating to subsections 9(b) and (c); that is, of "theincreased costs of shared custody arrangements" and "theconditions, means, needs and other circumstances of each spouse[parent] and of any child for whom support is sought." Thisevidence has often been lacking, with the result that the courtshave been forced either to make assumptions about increased costs,or to refuse the application under section 9 for lack of anevidentiary foundation. The latter option is particularlyunsatisfactory in cases of in-person litigants who often have littleidea about the nature ofthe evidence which is required. A carefullycrafted, standard form, "fill-in-the-b1anks" affidavit attached to theGuidelines may be of some assistance in that regard. Having saidthat, I recognize that it is not always easy for an access parent todemonstrate precisely what costs have increased as a result ofincreased access, and by how much.

Similarly, in applications for retroactive child support, the evidential basis for the court to assess

the application is often lacking, such that an applicant is often left with seeking to rely on the


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court exercising its judicial discretion or to drawing adverse inferences where the evidence is

lacking, to avoid being sent away to obtain the appropriate evidence.

Yet, parties must recognize that the court's ability to draw assumptions about increased costs

arising out of shared custody arrangements or relative to a payor's conduct in not automatically

increasing child support commensurate with increases in income, must either have some

foundation in the evidence presented during the hearing or trial ofthe matter, or reasonably be

capable of the taking ofjudicial notice. The Court in Contino andDBS cautions at numerous

points against drawing assumptions where evidence is lacking as opposed to requiring the

litigants to put forward the information. Although s. 9 and the Court's analysis of retroactive

support applications provide the court with a broad discretion to determine child support in a

shared custody situation, there is no broad discretion under s. 9 for the Court to presume what the

increased costs arising out of a shared custody arrangement might be, except to the extent of the

presumptions that the table amounts are based on.

Some counsel have argued that the court should simply take judicial notice of increased costs or

costs associated with the condition, means, needs and other circumstances attributable to parties

or children based on the particular area in which they are resident. The extent to which a court

may take judicial notice of facts relating to matters in issue before the court was addressed in the

context of section 19 of the Guidelines by the Nova Scotia Court ofAppeal in Dean v. Brown,

2002 NSCA 124 at paras 13 and 14:

In Angelucci v. Dartmouth Cable T.V. Ltd. (1996), 155 N.S.R(2d) 81, this court said:

[28] As indicated by this court in R v. MacDonald (RA.)(1988),83 N.S.R (2d) 293; 210 A.P.R. 293 (C.A.), a trialjudge cannot take judicial notice of a fact unless:

... (a) the matter is so notorious as not to be the subject ofdispute among reasonable men, or (b) the matter is capableof immediate accurate demonstration by resort to readilyaccessible sources of indisputable accuracy.


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[29] In Cross on Evidence (6th Ed.), the authors say at p. 69:

The general rule is that neither a judge nor a juror may acton his personal knowledge of facts. Nor may the court takesteps to acquire such knowledge in private, for example, byapplying a scientific instrument to an exhibit in the absenceof a party. This rule has reference to particular facts.

Caution must be exercised in resorting to the doctrine ofjudicial notice, particularly where such is done without noticeto the parties or their counsel. In R. v. Quinn (1975),27 C.C.C.(2d) 543, MacDonald, J., of the Alberta Supreme Court said (p.550):

... I note that there is a difference between the taking ofjudicial notice on the basis of information not referred to bycounsel at the trial, and doing so on the basis of sourcesreferred to by counsel. Where the former is the case, thetrial judge should proceed with the utmost ofcaution,where the fact which he is tempted to notice is one vital tothe resolution of the case...

In this case, the matters of which the trial judge took judicial noticedo not meet the requisite test. No notice was given to the partiesthat he intended to impute income or that he would take judicialnotice of economic factors. There was no evidence before thecourt from which any inference or conclusion could be drawnrelating to any increased earning capacity of theappellant. Furthermore the trial judge took judicial notice in orderto contradict the evidence before him which was unchallenged. Tohave disposed of the most important factor involved in theapplication of the child support guidelines in this fashion was, inmy view, a palpable and overriding error.

Therefore, rather than relying on the discretion or indulgence of the courts to make findings on

child support on abstract equitable principles, parties would be well advised to put forward all

available evidence establishing the merits oftheir case and from which the court is better

positioned to assess the appropriateness of the child support order being contemplated and fix the

same based on the circumstances of the case.


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APPENDIX "A"

SASKATCHWAN CASES CONSIDERING CONTINO

Here are the Saskatchewan cases that have judicially considered Contino v. Leonelli-Contino,2005 SCC 63.:

Case Name: Deane v. Pawluk, [2006] SJ. No. 731 Locus Para 14

Justice: Sandomirsky

Consideration: Mentioned

Notes:

42 What is obvious to the Court is twofold: first, each parent approached the budget analysisdifferently. Second, each parent operates a household which is significantly different. Ananalysis of shared parenting pursuant to s. 9 of the Guidelines as explained by Contino v.Contino-Leonelli. supra,is thus precluded upon this application.

43 Nonetheless, using the evidence at hand, and mindful of the guiding principles enunciatedin each of the three seminal Supreme Court of Canada decisions, as quoted, I am able todetermine that the shared parenting scheme commands an expenditure of parental income inexcess of a sole custody parenting scheme. The setoff contemplated at subsection 9(a) of theGuidelinesis only a crude measure of the substantial differences in the income ofthe parents.Under subsection 9(b) of the Guidelines the evidence is somewhat deficient and inconsistent asbetween the parties. That hampers a precise examination ofthe budgets and actual expendituresofboth parents in addressing the needs ofthe children and a determination whether sharedcustody has resulted in increased costs globally. I will attempt to apportion those expensesbetween the parents in accordance with their respective incomes, but tempered by mydiscretionary analysis mandated by subsection 9(c) of the Guidelines. Under that subsection theCourt has a broad discretion to analyse the resources and needs ofboth parents and the children.I must seriously look at the standard of living of the children in each household and the ability ofeach ofthe petitioner and respondent to absorb the costs required to maintain the appropriatestandard of living in the circumstances. Therefore, I first am satisfied that the petitioner hasrebutted the presumption found at s. 3 of the Guidelines. In doing so the full table amount unders. 3 would be inappropriate to the circumstances of this shared parenting regime. Second, thedisparity in household incomes is far too great and an increase in child support is warranted.


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Case Name: Landry v. Landry, [2006] SJ. No. 638 Locus Para 9

Justice: Wilson


Notes:

9 Both the mother and father argued for the "set off' approach in determining theappropriate quantum of child support. Neither party presented evidence such that I couldundertake a "Contino" analysis. (Vide: Contino v. Leonelli-Contino 2005 SCC 63; [2005] 3S.C.R. 217). The issue is, thus, a determination of the income ofeach party and the amount eachparty would pay for one child under the Guidelines.

Case Name: Dietrich v. Dietrich, [2006] S.l No. 656 Locus Para 32


Consideration: Explained

Notes:

32 In the interim, should the existing amount of child support be varied? Based upon theincome information of the parties as it now stands, I am not able to do an analysis under s. 9 ofthe Guidelines and following the instructions of the Supreme Court of Canada as contained inContino v. Leonilli-Contino, supra. In order to do a Contino analysis I must have the evidence ofeach of the petitioner and respondent respecting how much money each expends on maintainingthe children in this shared custody arrangement. However, let me assist the parties with somedirection as to how the facts presented to date fit into a Contino analysis.

Further at 36 and 37:

36 Neither parent provided a budget and list of actual expenditures made to pay for the needsof the children and to determine whether shared custody resulted in increased costs globally. Irecognize the shared parenting scheme has always existed and therefore no reckoning ofchildrearing costs in a sole custody scenario is available for comparison purposes. Contino, supra,contemplates the parents address fixed and variable costs expended by each parent in raisingtheir children-not merely extraordinary or special expenses contemplated by s. 7 of theGuidelines. The actual wording of s. 9(b) is "the increased costs of shared custodyarrangements." The purpose of s. 9(b) is to examine, and ifpossible quantify, the increased costof a shared parenting regime versus a sole parenting regime. The "increased costs wouldnormally result from duplication resulting from the fact that the child is effectively being giventwo homes"-para. 52 Contino, supra. This increase, ifquantified is to be paid pro rata by theparties according to their respective incomes. For example, in Contino, supra, the evidence was


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that the father spent $1,814.00 per month on child expenses and the mother spent $1,916.95 permonth for the same reason. Since Mr. Contino earned $87,315.00 annually, and Mrs. LeonelliContino earned $68,082.00 annually, Mr. Contino was required to pay 56% ofthe total childrelated expenses while his former spouse was to pay 44%. This meant the following:

$3,730.95 x 56% = $2,089.32 (the father's share); $3,730.95 x 44% = $1,641.62 (the mother'sshare).

In Contino, supra, while s. 9(a) provided a setoff ofonly $128.00, the s. 9(b) analysis suggestedthat Mr. Contino pay $275.33 per month before adjustments based on s. 9(c) were considered.

37 Inasmuch as the Court does not have the budgets by which each of the petitioner andrespondent pay for fixed and variable costs in raising the children, it is not possible to completethe s. 9(b) analysis. Therefore, the petitioner and respondent should prepare an analysis or budgetof their respective fixed and variable costs of raising the two children in their homes during theyear 2005. This will demonstrate the actual increased cost of raising the children in two housesrather than one. These budgets may very well warrant an adjustment of the s. 9(a) setoff of$1,310.00 per month.

Case Name: Amos v. Fischer [2006] S.J. No. 72 Locus Para 13

Justice: Kraus


Notes: No Comments.

Case Name: Parker Estate v. Parker, [2006] SJ. No. 77 Locus Para 6



Notes:

6 Madam Justice Dawson also ordered that the children would be in the care (or access) ofthepetitioners, being the maternal grandparents, from Thursdays at 7:00 p.m. until Sundays at 7:00p.m., expanding to Monday at 7:00 p.m. ifthere was a holiday weekend. It was ordered thatduring summer holidays that the children would reside with the petitioners and the respondent ona rotating weekly basis except that each of the petitioners and respondent would have an optionfor two weeks' vacation time with the children. On other yearly school breaks the children wereto spend one-halfof each holiday or break with each of the petitioners and respondent. This


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division of childcare would trigger shared parenting considerations embraced by s. 9 oftheFederal Child Support Guidelines [SOR/97-175, as am.] (the "Guidelines") if the matter of childsupport was raised. It can only be upon this premise that the respondent today seeks a retroactivecontribution of child support from the estate/trust. No evidence was led pursuant to s. 9 of anyincreased cost ofthe shared parenting regime, respective budgets of childcare and evidence ofincomes as all of these factors are contemplated for a s. 9 adjudication-Contino v. LeonelliContino 2005 SCC 63; (2005), 341 N.R. 1 (S.C.C.).

Case Name: E.D.o. v. G.C.H., [2005] S.J. No. 777 Locus Para 27

Justice: Ryan-Froslie


Notes: No Comments.


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APPENDIX "B"

SASKATCHWAN CASES CONSIDERING DBS

Here are the Saskatchewan cases that have judicially considered D.B.S. v. S.R. G.; L.J. W. v.T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 ("D.RS"):

Case Name: Bosomworth v. Bosomworth, [2007] S.J. No. 103 Locus Para 69

Justice: Wilson


Award Retroactive Support:

Paragraph 69: ...Ofimportance for the decision before me is a consideration of whether Johnprovided, when asked, income information so that Barbara could reach a decision as to whether avariation of child support was warranted. It is clear that Barbara did not receive financialinformation from John in 2002 and I accept Barbara's evidence that she requested theinformation. I also accept, however, that John signed an authorization which would have allowedhis trustee in bankruptcy to provide the necessary information to Barbara. What happened to thisauthorization is unknown. Barbara's lawyer may not have pursued the gathering of thisinformation or, as Barbara suggests, John's lawyer may have failed to forward the authorizationto Barbara's lawyer. In any event, I find that John's income throughout the years of2001 to 2003was lower than the sum of $66,000.00 which was the income set out in the parties' InterspousalContract. Thus, had Barbara received the income information it is very unlikely she would havepursued the matter to court as she could not have established that John was earning the sum of$66,000.00 throughout this period of time. John paid the sum of $729.00 per month which wouldhave been the appropriate child support ifhe was earning $55,900.00 per year. John earned$55,822.00 in the 2001 calendar year, the sum of $59,104.00 in the 2002 calendar year, and thesum of$60,705.00 in the 2003 calendar year. Any adjustment regarding child support for theyears 2002 and 2003 would have been minimal.

Paragraph 70: I cannot conclude, on the evidence before me, that there is blameworthyconduct on behalf of John that renders a retroactive variation of his child supportobligation appropriate in these circumstances. As set out above, I believe that John didattempt to provide Barbara with income information and, further, Barbara took no steps to pursuethe matter further, at any time between April 2002 and May 2005, when the issue was looked aton the interim motions ofboth John and Barbara.

Further at paragraph 87 (b): John's income is imputed at the sum of$41,525.00. Based on thisincome John shall pay s. 3 table support for Joshua and Jadeena in the sum of$580.00 per monthcommencing March 1, 2007 and continuing on the first day of each and every month thereafter.As agreed at trial, John shall make his monthly payment by a direct deposit into Barbara's


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account, no later than the fourth day of each month. John is in arrears for the time period fromJanuary 1, 2006 to February 28,2007 as his imputed income is applicable as at January 2006.Arrears are the total sum of$I,450.00 which sum shall be payable forthwith

Notes: It appears as ifhe was in arrears for a certain amount of time, but the retroactivevariation going back to 2002 was not accepted. Arrears ofchild support were to be paidforthwith but these arrears do not appear to be associated with the retroactive variation ofsupport.

Case Name: Bird v. Bird, [2007] S.J. No. 67 Locus Para 10

Justice: Konkin

Consideration: Followed


Paragraph 14: Having regard to the test in D.B.S., the circumstances of the respondent and thetotal lack of information tendered by the petitioner on her own behalf, I find that the Court is notin a position to make a determination on retroactive support on an interim basis with thematerials currently before the Court.

Notes: None

Case Name: Gavelin v. Pafeman, [2007] S.J. No. 86 Locus Para 24

Justice: Ryan-Froslie



Paragraph 26: In this case, Mr. Gavelin lived up to the parties' verbal agreement until January,2006, at which time he unilaterally ceased paying the support agreed upon. By May, 2006 he hadstopped paying child support altogether. He attests his reason for doing so is because he was nothaving access to his children. The obligation to pay child support is not contingent on a payor'sability to see their children. It is an independent obligation and Mr. Gavelin cannot justify hisfailure to provide support on that basis. It appears from the limited evidence before this Courtthat Ms. Pateman's income was substantially less than that ofMr. Gavelin's. The child supportwas necessary to meet the children's basic ongoing needs. Mr. Gavelin knew he had anobligation to provide child support and there is no evidence a retroactive order would cause himundue hardship. There is evidence in both the petitioner and the respondent's affidavit materials


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that a request a for change in child support preceded the commencement of this application. Mr.Gavelin attests at para. 6 of his January 12, 2007 affidavit that the respondent refused to allowhim parenting time if he "...did not agree to pay her the amount of child support she demanded".I am satisfied in the circumstances that retroactive child support is warranted.

Notes:

Retoactive arrears were not due in a lump payment but were to be paid in instalments: Atparagraph 28 it was held that "Mr. Gavelin shall pay the child support arrears of $8,107 at therate of$500 per month commencing February 15, 2007 and payable on the 15th day of each andevery month thereafter until the arrears are paid in full."

Case Name: Millar v. Millar, [2007] SJ. No. 82 Locus Para 7

Justice: Gerein



Paragraph 7: ....The conclusion relevant to this case was that a court does not havejurisdiction to deal with child support once the person is no longer a child within themeaning of the Divorce Act.

Paragraph 10: The application for retroactive variation of the child support cannot succeed.This is so despite these remarks of Mr. Justice Bastarache, made in disposing of the Henryappeal, at para. 150.

I would add that the eldest child affected by Rowbotham J.'s order was no longera child ofthe marriage when the Notice of Motion for retroactive support wasfiled. In the circumstances of this appeal, however, this fact has no effect on thejurisdiction ofthe court to make a retroactive child support order under theDivorce Act. Because Mr. Henry did not disclose his income increases to Ms.Henry earlier, she was compelled to serve him with a Notice to DiscloselNotice ofMotion in order to ascertain his income for the years relevant to this appeal. Thisformal legal procedure, contemplated in the Guidelines and a necessaryantecedent to the present appeal, sufficed to trigger the jurisdiction of the courtunder the Divorce Act. Because it was completed prior to the time the eldest childceased being a child of the marriage, the court was able to make a retroactiveorder for his daughter.

Paragraph 11: In this case before me the respondent commenced her procedure long after Taylorceased to be a child of the marriage. That being so, the court no longer has jurisdiction to dealwith the application.


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Notes: None

Case Name: Anthony v. Anthony, [2007] S.J. No. 51 Locus Para 103

Justice: Currie

Consideration: Explained


At paragraph 108: I do order Kurt to make retroactive payment of Guidelines child support.The payments that he ought to have made would have been based on his income. While theGuidelines do not establish a system in which the payment amount necessarily changes everyyear with a change in income, in this case establishing the payments for each year is reasonable.These were years of exceptional income for Kurt. Using an average, or using an initial incomeamount, could result in unfairness to either Aileen or Kurt. Since the actual numbers areavailable in this retroactive calculation, they should be used.

Notes:

At paragraph 136(b)(iv), the following order was made:

(iv) The respondent will have judgment against the petitioner in the amount of $54,204, less thesetoff ofretroactive child support in the amount of $49,808, for a net judgment amount of$4,396.

Case Name: Smith v. Goethals, [2006] S.J. No. 763 Locus Para 16




Paragraph 32: I do not find the petitioner's conduct blameworthy. To order retroactive supportof $4,322.00, whether payable in a lump sum or by instalments over time, would, in myopinion, represent a hardship to a wage earner in the petitioner's category.

Notes:

For Your Information the terms "blameworthy conduct" questioned in this case at paragraph 29:


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I am troubled by the definition of "blameworthy conduct" which Bastarache J.provides at paragraph 106 ofDBS. He states, "I would characterize asblameworthy conduct anything that privileges the payor parent's own interestsover his/her children's right to an appropriate amount of support". That definitionis far too wide in my respectful opinion. It blurs the line ofdemarcation betweenmajority and minority opinions in DBS. Given that liberal and generousdefinition, virtually all increases of the payor's income would privilege the payor'sown interests over the children's right to an appropriate amount of child support. Iam certain that Justice Bastarache did not intend minute or even slightly modestincreases in the payor's income would trigger blameworthy conduct. Deminimusnon curat lex. My view ofthe evidence in this application is that the annualincreases equivalent to roughly 10% per annum, when adjusted for the annual rateofinflation, are not so significant that the petitioner would have reasonablythought that she was feathering her own nest at the expense of her children.

Case Name: Kuderewko v. Kuderewko, [2006] S.l No. 726 Locus Para 143

Justice: Dawson



Paragrpaph 146: In regards to the principles set out by the Supreme Court inD.B.S. v. S.R.G.;L.J. W v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, supra, this likely would be a case whereretroactive child support would be ordered. However, having regard to the fact that Mr.Kuderewko made the mortgage and tax payments on the family home, which Mrs. Kuderewkohas lived in throughout and which the parties agreed Mrs. Kuderewko would receive in theproperty division, and having regard to the fact that the parties agree the petition date is the datefor the division ofproperty and, having regard to the level ofchild support for which Mr.Kuderewko likely would have been obligated to pay, I find that this is not an appropriate casefor retroactive child support.

Notes: Interesting that in the decision, that it is held that it would be an appropriate case togrant retroactive support, but then to put in the "however" and qualify the decision so that noretroactive support is payable.

Case Name: Deane v. Pawluk, [2006] S.J. No. 731 Locus Para 21



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122 ... Knowing support is related to income, the payor parent will generally bereasonable in thinking that his/her child's entitlements are being met where (s)hehas honestly disclosed hislher circumstances and the recipient parent has notraised the issue of child support.

Notes: None

Case Name: Berube v. Berube, [2006] SJ. No. 725 Locus Para 19

Justice: Dawson



Paragraph 19: The mother has also claimed retroactive child support to February 1, 2006. Priorto January 2006, the parties shared the parenting of the children. In January 2006, all threechildren came to reside with the mother. The mother requested child support almost immediatelybut the father declined to pay. Thereafter the father paid no child support to the mother, with theexception of a single payment of $350.00. I am satisfied having regard to the principles setout in D.B.S. v.· S.R. G.; L.J. W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC37; (2006) 61 Alta. L.R. (4th) 1 (S.C.C.) that retroactive child support is appropriate.

Notes: None

Case Name: Johnston v. Johnston, [2006] S.J. No. 653 Locus Para 2

Justice: McMurtry


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At paragraph 2: The first application is denied on the basis that the Court does not havejurisdiction to award child support for a child if the application is made when the subjectofthe order is no longer a child ofthe marriage within the meaning of s. 2(1) ofthe DivorceAct, R.S.c. 1985, c. 3 (2nd Supp.).

Notes: None

Case Name: Lavoie v. Tisserand, [2006] S.J. No. 567 Locus Para 5




At paragraph 16: The respondent shall pay to the petitioner the sum of $200.00 per month onaccount of arrears commencing September 1,2006, and on the first day of each and everymonth thereafter until the balance of arrears, $2,075.01 is paid in full. In addition, the respondentshall pay to the petitioner the sum of$183.00 per month as those payments fall due under theconfirmed order commencing August 1, 2006.

Notes: These were no so much as a result of a retroactive order, but were the arrears that werein place at the time.

Case Name: Wyper v. Wyper, [2006] S.J. No. 549 Locus Para 12

Justice: McIntrye



At paragraph 13: The petitioner's motion was served May 10, 2006, returnable June 21,2006.Her claim for retroactivity to 2004 is acknowledged by the Supreme Court of Canada as apossible outcome. The petitioner's evidence is that requests for financial disclosure were madewhich may be considered to be the date of effective notice as referred to by the Supreme Court ofCanada. On the petitioner's version it may also be that the respondent has engaged inblameworthy conduct as that term is used by the Supreme Court of Canada. At the same time


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there are a variety of other questions that arise. Should there be an adjustment for 2003 when therespondent's income was substantially reduced? He says he raised it. She denies disclosure of his2003 income information. Would a retroactive award of the amount sought give rise to unduehardship as that concept is raised by the Supreme Court of Canada in the context of a request forretroactivity? Issues ofchild support and spousal support are interrelated in this InterspousalContract in a way that is outside the norm. The child support payable was substantially less thanwhat the Guidelines would have required. It is suggested the parties negotiated a global amountfor child and spousal support. If retroactive adjustments are appropriate as a result of increasedincome, what sort of adjustment fits the particular circumstances ofthe case, which seems to bethe criteria the Supreme Court of Canada says is to be applied. In the circumstances, I declineto deal with retroactivity on an interim application. I will deal with child support on aprospective basis as of June 1,2006 and the issue ofspousal support.

Notes: None


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Acknowledgements

The author wishes to acknowledge the contribution to this paper made by Ian Smith, a lawyer inthe Saskatoon office ofMacPherson Leslie & Tyerman LLP. I have previously written articleson both the s. 9 Guideline analysis and the retroactive assessment of child support, see: SKLESIFamily Law Update November 2003: Shared Parenting and Child Support and CBASaskatchewan Midwinter Meeting January 2006: Retroactive Awards ofChild Support: AnUpdate on the Debate between the Alberta Trilogy Approach and the L.S. v. E.P. Test and theirApplication in Saskatchewan. I have included some parts ofthe analysis from each of thosepapers in this paper where I believe the analysis from those papers remains current (in otherwords, where I believe the Supreme Court of Canada's analyses have not proven me wrong) andfor ease of reference for lawyers who may not be familiar with those papers. For those ofyouwho remember those papers I apologize for causing you any extra reading.


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