Contino v. Leonelli-Contino

Contino v. Leonelli-Contino
Collection
Supreme Court Judgments
Date
2005-11-10
Neutral citation
2005 SCC 63
Report
[2005] 3 SCR 217
Case number
30100
Judges
McLachlin, Beverley; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise
On appeal from
Ontario
Subjects
Family law
Notes
SCC Case Information: 30100
Decision Content
SUPREME COURT OF CANADA
Citation: Contino v. Leonelli‑Contino, [2005] 3 S.C.R. 217, 2005 SCC 63
Date: 20051110
Docket: 30100
Between:
Joanne Leonelli‑Contino
Appellant
and
Joseph Contino
Respondent
Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
Reasons for Judgment:
(paras. 1 to 83)
Dissenting reasons:
(paras. 84 to 157)
Bastarache J. (McLachlin C.J. and Major, Binnie, LeBel, Deschamps, Abella and Charron JJ. concurring)
Fish J.
______________________________
Contino v. Leonelli‑Contino, [2005] 3 S.C.R. 217, 2005 SCC 63
Joanne Leonelli‑Contino Appellant
v.
Joseph Contino Respondent
Indexed as: Contino v. Leonelli‑Contino
Neutral citation: 2005 SCC 63.
File No.: 30100.
2005: January 14; 2005: November 10.
Present: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
on appeal from the court of appeal for ontario
Family law — Maintenance — Federal Child Support Guidelines — Shared custody — Proper approach to application of s. 9 of Federal Child Support Guidelines, SOR/97‑175.
The appellant mother and the respondent father entered into a separation agreement in 1992. The separation agreement provided for joint custody of their son, whose daily residence was to be with his mother, and for the payment by the father of $500 per month in child support. In 1998, this amount was raised to $563. Three years later, the father applied for a reduction in the amount of child support pursuant to s. 9 of the Federal Child Support Guidelines because the child was now in his physical custody 50 percent of the time. Both parties filed their 1998, 1999 and 2000 tax returns as well as their respective financial statements. At the time, the mother’s income was about $68,000 and the father’s around $87,000. Both parties attributed 50 percent of their fixed and variable expenses to the child. The mother and father respectively assigned $1,916.95 and $1,814 of their total expenses to the child. The motions judge granted the motion and reduced the amount of child support to $100 per month. The Divisional Court set aside the decision and ordered the father to pay the full Table amount of $688 per month. The Court of Appeal reduced the monthly amount payable by the father to $399.61. It used the simple set‑off amount as a starting point for determining the support amount (s. 9(a)) and adjusted the set‑off amount by applying a multiplier of 67.6 percent to account for the mother’s fixed costs (s. 9(b)) and by taking the actual situation of the parents and the child into account (s. 9(c)).
Held (Fish J. dissenting): The appeal should be allowed.
Per McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Abella and Charron JJ.: Section 9 of the Guidelines expressly provides for a particular regime in cases of shared custody, and this implies a departure from the payor/recipient model that comes under s. 3. Section 9 requires a court to determine the amount of child support in accordance with the three listed factors once the 40 percent threshold is met. The specific language of s. 9 warrants emphasis on flexibility and fairness to ensure that the economic reality and particular circumstances of each family are properly accounted for. The three factors structure the exercise of the discretion and none of them should prevail. The weight given to each factor will vary according to the particular facts of each case. Under s. 9, there is no presumption in favour of awarding at least the Guidelines amount under s. 3. Nor is there a presumption in favour of reducing the parent’s child support obligation downward from the Guidelines amount, as it is possible that, after a careful review of all of the factors in s. 9, a court will come to the conclusion that the Guidelines amount is the proper amount of child support. [19‑31] [39]
Under s. 9(a), a court is required to take the financial situations of both parents into account, but the provision does not include a conclusive formula to determine how the Table amounts are to be considered or accounted for. The simple set‑off amount is the preferable starting point for the s. 9 analysis, but it must be followed by an examination of the continuing ability of the recipient parent to meet the needs of the child, especially in light of the fact that many costs are fixed. Where both parents are making effective contributions, it is necessary to verify how each parent’s actual contribution compares to the Table amount that is provided for each of them when considered payor parents. This will provide the judge with better insight when deciding whether the adjustments to be made to the set‑off amount are based on the actual sharing of child‑related expenses. The court retains the discretion to modify the set‑off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to the other. [40‑51]
Section 9(b) does not refer merely to the expenses assumed by the payor parent as a result of the increase in access time from less than 40 percent to more than 40 percent. This paragraph recognizes that the total cost of raising children may be greater in shared custody situations than in sole custody situations. Given that some applications under s. 9 are not meant to obtain a variation order but constitute a first order and that the Table amounts in the Guidelines do not assume that the payor parent pays for any expense for the child, the court will consider all of the payor parent’s costs. The court will examine the budgets and actual expenditures of both parents in addressing the needs of the children and determine whether shared custody has resulted in increased costs globally. These expenses will be apportioned between the parents in accordance with their respective incomes. [52‑53]
Lastly, s. 9(c) vests the court with a broad discretion to analyse the resources and needs of both the parents and the children. It is important to keep in mind the objectives of the Guidelines, requiring a fair standard of support for the child and fair contributions from both parents. The court will look at the standard of living of the child in each household and the ability of each parent to absorb the costs required to maintain the appropriate standard of living in the circumstances. Financial statements and/or child expense budgets are necessary for a proper evaluation of s. 9(c). There is no need to resort to s. 10 and s. 7 of the Guidelines either to increase or to reduce support, since the court has full discretion under s. 9(c) to consider “other circumstances” and order the payment of any amount above or below the Table amounts. It may be that s. 10 would find application in an extraordinary situation, but that is certainly not the case here. [68‑72]
It is important that the parties lead evidence relating to ss. 9(b) and 9(c), and courts should demand information from the parties when the evidence is deficient. A court should neither make “common sense” assumptions about costs incurred by the payor parent, nor apply a multiplier to account for the fixed costs of the recipient parent. [56-57]
Taking into consideration all the factors prescribed in s. 9 and applying them to the particular factual context of this case, the mother should be awarded the sum of $500 per month in child support. [73‑80]
Per Fish J. (dissenting): Support orders under s. 9 of the Guidelines are discretionary by design, but constrained by principle and subject to the overriding requirement of fitness. In determining an appropriate award, all the governing factors set out in s. 9 must be considered. “Appropriate” does not mean mathematically or methodologically ascertainable with precision. It means within an acceptable range that is in each case determined by applying in a principled manner the s. 9 factors to the proven facts and particular circumstances of the matter. An appropriate support order in this case should ensure insofar as possible that the child of the parties enjoys a standard of living that is reasonably comparable to his standard of living before the divorce and does not vary markedly in material respects moving from one household to the other. The method for achieving this outcome should be evidence‑based. [92] [103] [105]
Section 9(a) of the Guidelines requires the court to take the Table amounts into account in fixing child support for shared custody arrangements. The simple set‑off of the Table amounts for sole custody may be a convenient starting point in a global consideration of all the factors that must be weighed under s. 9. The purpose of s. 9(b) is to ensure that the increased costs of shared custody are properly reflected in the support order. This relates essentially to the duplication of fixed costs and to other expenses that result from the exigencies of shared custody. The extent of the duplication of fixed costs will generally be apparent from the budgets submitted by the parties. However, where there is no evidentiary basis for taking into account the increased costs of shared custody arrangements, a court should not resort to multipliers, but instead can reopen the hearing for that purpose. Section 9(c) is the appropriate place for an apportionment of certain expenditures according to the respective incomes of the parents, including the duplicated expenses identified pursuant to s. 9(b). Finally, having applied all the s. 9 factors and in spite of the broad language of s. 9(c), a trial judge may still not have arrived at a just award. In such cases, s. 10(1) of the Guidelines allows a court to “award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9”. [114-18] [125] [130-31]
In this case, the set‑off amount is $128 per month, and only two types of expenditures should be equalized between the parents: the duplications and other incremental costs inherent in shared custody, which s. 9(b) requires a court to consider, and the variable child care costs that might otherwise be shared by the parents. Furthermore, there are two non‑numerical factors under s. 9(c) that must be taken into account: the disparity between the net assets of the parents and, since this case involves a modification and not an initial support order, the arrangement in effect prior to shared custody. The monthly child support previously paid by the father is an important consideration in the circumstances of this case because the mother incurred fixed costs that were in part a function of the support she was receiving at the time. However, the support previously paid creates no entitlement to continued support at the same level where the parties have moved to shared custody. The Court of Appeal awarded a support order of $399.61. This award lies within the acceptable range. The Court of Appeal set out the basic principles correctly. Its unfortunate observation as to the permissible use in some circumstances of a “stock multiplier” had no bearing on its conclusion, and the limited effect of its resort to a multiplicative factor is adequately compensated by the other factors. [129] [132] [137] [145] [150] [154]
Cases Cited
By Bastarache J.
Distinguished: Francis v. Baker, [1999] 3 S.C.R. 250; referred to: Green v. Green (2000), 187 D.L.R. (4th) 37, 2000 BCCA 310; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Chartier v. Chartier, [1999] 1 S.C.R. 242; Jamieson v. Jamieson, [2003] N.B.J. No. 67 (QL), 2003 NBQB 74; Berry v. Hart (2003), 233 D.L.R. (4th) 1, 2003 BCCA 659; Fletcher v. Keilty (2004), 269 N.B.R. (2d) 302, 2004 NBCA 34; Slade v. Slade (2001), 195 D.L.R. (4th) 108, 2001 NFCA 2; Dean v. Brown (2002), 209 N.S.R. (2d) 70, 2002 NSCA 124; Hill v. Hill (2003), 213 N.S.R. (2d) 185, 2003 NSCA 33; Cabot v. Mikkelson (2004), 242 D.L.R. (4th) 279, 2004 MBCA 107; Dennis v. Wilson (1997), 104 O.A.C. 250; Wylie v. Leclair (2003), 64 O.R. (3d) 782; E. (C.R.H.) v. E. (F.G.) (2004), 29 B.C.L.R. (4th) 43, 2004 BCCA 297; Luedke v. Luedke (2004), 198 B.C.A.C. 293, 2004 BCCA 327; Gieni v. Gieni (2002), 29 R.F.L. (5th) 60, 2002 SKCA 87; Middleton v. MacPherson (1997), 204 A.R. 37; Moran v. Cook (2000), 9 R.F.L. (5th) 352; Harrison v. Harrison (2001), 14 R.F.L. (5th) 321; Paras v. Paras, [1971] 1 O.R. 130.
By Fish J. (dissenting)
Paras v. Paras, [1971] 1 O.R. 130.
Statutes and Regulations Cited
Divorce Act, R.S.C. 1985, c. 3 (2nd Supp .), ss. 15(8) [now repealed], 17(8) [now repealed], 26.1(2) [ad. 1997, c. 1, s. 11].
Federal Child Support Guidelines, SOR/97‑175, ss. 1, 3, 4, 5, 7, 8, 9, 10.
Authors Cited
Canada. Department of Justice. Child Support Team. Research Report. Formula for the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report. Ottawa: The Department, 1997.
Canada. Department of Justice. Children Come First: A Report to Parliament Reviewing the Provisions and Operation of the Federal Child Support Guidelines, vol. 2. Ottawa: The Department, 2002.
Colman, Gene C. “Contino v. Leonelli-Contino — A Critical Analysis of the Ontario Court of Appeal Interpretation of Section 9 of the Child Support Guidelines” (2004), 22 C.F.L.Q. 63.
Federal/Provincial/Territorial Family Law Committee. Child Support: Public Discussion Paper. Ottawa: The Committee, 1991.
Finnie, Ross, Carolina Giliberti and Daniel Stripinis. An Overview of the Research Program to Develop a Canadian Child Support Formula. Ottawa: Department of Justice, 1995.
MacDonald, James C., and Ann C. Wilton. Child Support Guidelines: Law and Practice, 2nd ed., vol. 1. Toronto: Carswell, 1998 (loose‑leaf updated 2004, release 4).
McLeod, James G. “The Proposed Child Support Guideline Package: The Scope of Judicial Discretion”, in Federal Child Support Guidelines: Reference Manual. Ottawa: Department of Justice, 1997, F‑1.
Melli, Marygold S. “Guideline Review: Child Support and Time Sharing by Parents” (1999), 33 Fam. L.Q. 219.
Melli, Marygold S., and Patricia R. Brown. “The Economics of Shared Custody: Developing an Equitable Formula for Dual Residence” (1994), 31 Houst. L. Rev. 543.
Millar, Paul, and Anne H. Gauthier. “What Were They Thinking? The Development of Child Support Guidelines in Canada” (2002), 17 C.J.L.S. 139.
Payne, Julien D., and Marilyn A. Payne. Child Support Guidelines in Canada 2004. Toronto: Irwin Law, 2004.
Rogerson, Carol. “Child Support Under the Guidelines in Cases of Split and Shared Custody” (1998), 15 Can. J. Fam. L. 11.
Sullivan, Ruth. Sullivan and Driedger on the Construction of Statutes, 4th ed. Markham, Ont.: Butterworths, 2002.
Thompson, D. A. Rollie. “Annotation to E. (C.R.H.) v. E. (F.G.)”, 2004 CarswellBC 1157.
Thompson, D. A. Rollie. “Case Comment: Contino v. Leonelli‑Contino” (2004), 42 R.F.L. (5th) 326.
Wensley, Kim Hart. “Shared Custody — Section 9 of the Federal Child Support Guidelines: Formulaic? Pure Discretion? Structured Discretion?” (2004), 23 C.F.L.Q. 63.
APPEAL from a judgment of the Ontario Court of Appeal (O’Connor A.C.J.O., Weiler and Rosenberg JJ.A.) (2003), 67 O.R. (3d) 703, 232 D.L.R. (4th) 654, 42 R.F.L. (5th) 295, 178 O.A.C. 281, [2003] O.J. No. 4128 (QL), allowing an appeal from a judgment of the Divisional Court (Carnwath, E. Macdonald and Czutrin JJ.) (2002), 62 O.R. (3d) 295, 166 O.A.C. 172, 30 R.F.L. (5th) 266, [2002] O.J. No. 4620 (QL), allowing an appeal from a decision of Rogers J. and setting aside her order reducing the father’s child support payments. Appeal allowed, Fish J. dissenting.
Deidre D. Smith, Susan E. Milne and Gary Joseph, for the appellant.
Thomas G. Bastedo, Q.C., and Samantha Chousky, for the respondent.
The judgment of McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Abella and Charron JJ. was delivered by
Bastarache J. —
1. Introduction
1 When the federal government decided to adopt in 1997 the Federal Child Support Guidelines, SOR/97-175 (“Guidelines”), its first decision was to choose between different formulae and design a system that would be adapted to the Canadian context. The formulae that were considered with greatest attention were the four in use in the United States: (1) the Income‑Shares Model, where the child should receive the same amount of the parental income, in proportion to each parent’s income, as before the separation; (2) the Delaware or Melson Formula, where basic needs are met before determining how the child is to share the remaining parental income; (3) the Flat Percentage of Income Model, where it is assumed that each parent will spend the same percentage of his or her income on the child and the non‑custodial parent’s share is fixed by regulation; and (4) the Income Equalization Model which is designed to equalize the standards of living of custodial and non‑custodial parents so that the child will experience the lowest reduction in standard of living possible (Federal/Provincial/Territorial Family Law Committee, Child Support: Public Discussion Paper (1991), at pp. 10‑11).
2 The government decided to adopt a unique formula in the case of split custody; that is the situation where each spouse has custody of one or more children. It is best described as the revised fixed percentage. It is included in ss. 3 and 8 of the Guidelines (see Appendix) and has the features of the flat percentage formula, but uses a specific set of underlying principles to arrive at percentages that vary according to income level. The formula produces a schedule of payment amounts taking into consideration tax consequences. It provides for some add-ons with respect to special expenses (R. Finnie, C. Giliberti and D. Stripinis, An Overview of the Research Program to Develop a Canadian Child Support Formula (1995), at pp. 27‑28).
3 When dealing with shared custody, however, the formula used in ss. 3 and 8 was not retained. New categories of custodial arrangements were created under s. 9 which states:
9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
These shared custodial arrangements required the application of an entirely different formula, one that is not designed with the same guiding principles. Guidelines amounts applicable to the former non‑custodial parent or to the highest income earner in the case of a first application cannot therefore be considered to be presumptively applicable. Shared custody arrangements are not a simple variation of the general regime, they constitute by themselves a complete system.
4 The application of the factors under s. 9 of the Guidelines have proven to pose serious difficulties. The problems have been addressed in terms of fairness. As mentioned by professor C. Rogerson in her article “Child Support Under the Guidelines in Cases of Split and Shared Custody” (1998), 15 Can. J. Fam. L. 11, at p. 20:
Pushing in favour of some adjustment is a concern for fair and consistent treatment of payors who incur increased expenses during the time they spend with the child. There are two dimensions to the fairness claim. The first is fairness between the payor and the support recipient, who is arguably being relieved of some costs assumed by the payor. The second is fair and consistent treatment of the payor as compared to payors at the same income level who may not be spending any money directly on their children apart from the payment of child support.
But then adjustments are hard to evaluate. More time spent with a child may not involve increased spending or significant savings for the other parent. Where there is a significant disparity of incomes, a new formula can mean a drastic change in the amount of support for the lower‑income parent, who was previously the custodial parent, and exacerbate the differences in standard of living in the two households. There is also a concern that shared custody can entail more cost in duplication of services and leave less money for support.
5 Against this backdrop, the role of the Court is to interpret the Guidelines as drafted by Parliament. Section 9 is labelled “Shared custody”. Forty percent or more time spent with physical access to the child triggers the application of the three factors in s. 9. We are not concerned in this case with the difficulties sometimes encountered in determining whether the threshold has been met, but with the quantum of support to be awarded once it is. The Court is being asked to decide whether the s. 9 award can be greater than the Guidelines amount; whether the Guidelines amounts are presumptively applicable; whether all three factors in s. 9 are to be given equal weight; whether “increased costs” under s. 9 refers to increased costs of the previously non‑custodial parent or increased costs resulting from the shared custodial arrangement; whether a multiplier can be used in the absence of evidence of increased costs; and how actual needs, conditions and means are taken into account in deciding on a deviation from the Guidelines amounts. These questions must be approached in the context of the particular facts of this case, to which I now turn.
1.1 Overview of the Facts
6 The mother and the father were married on October 30, 1982, and their only child, Christopher, was born on March 26, 1986. After they separated, they entered into an agreement, dated May 25, 1992, that provided for joint custody of Christopher. His daily residence was to be with the mother, free and liberal access being given to the father. The agreement further provided that the father would pay child support in the amount of $500 per month, subject to an annual cost of living increase. No annual increases were ever paid by the father, and in 1998, the mother applied for the Guidelines amount of support. By minutes of settlement signed in July of 1998, the father agreed to pay $563 per month in child support, based on his annual income of $68,712, adjusted annually in accordance with the Guidelines. Again, child support was not adjusted, although the father’s income rose to $83,527.58 in 1999. The parties also shared equally in Christopher’s orthodontic expenses, although the mother’s income of $53,292 was less than that of the father.
7 In 2000, the mother began taking a course on Tuesday nights and asked if the father would switch nights with her so that Christopher would be with the father on Tuesdays instead of Thursdays. The father stated that he would take Christopher on both days for the duration of the course.
8 As a result of having Christopher with him for an additional night each week, in September of 2000, the father requested a reduction in child support based on the s. 9 shared custody provisions, but the mother refused. In March 2001, the father applied to vary the amount of child support on the grounds that the extra night resulted in Christopher being with him 50 percent of the time. Both parties filed their 1998, 1999 and 2000 tax returns as well as their respective financial statements. Both parties attributed 50 percent of their fixed and variable expenses such as mortgage, taxes and groceries to Christopher and both claimed additional expenses for him. The mother and father respectively assigned $1,916.95 and $1,814 of their total expenses to Christopher. The mother stated that monthly expenses for him for clothes, school fees and activities for him totalled $275 per month, while the father claimed $120 per month in variable expenses. The mother also invested $153.84 monthly in a Registered Education Savings Plan (“RESP”) for Christopher’s benefit. Both these variable expenses and the amount invested monthly in the RESP were included in both parents’ total expenses.
1.2 Judicial History
1.2.1 Ontario Superior Court of Justice (Unified Family Court)
9 Rogers J. endorsed the record that in recognition of the shared custody regime, pursuant to s. 9, there would be a reduction in the Guidelines amount. She ordered a retroactive reduction in support to $100 per month, commencing in September 2000, requiring the mother to repay the overpayment at a rate of $50 per month. Further, she ordered the parties to share equally in s. 7 expenses (special or extraordinary expenses). The parties were entitled to claim the dependent deduction for Christopher in alternate years. The father was awarded costs in the amount of $3,800.
10 A transcription of the proceedings revealed that there had been an earlier finding that Christopher currently lives with his father 50 percent of the time as it was conceded by the mother at a pre-hearing conference. Rogers J. permitted the father to file recent copies of his tax returns but did not permit the mother, who was self‑represented, to question any of the figures. Rogers J. fixed the mother’s income at $68,082, inclusive of a $7,000 bonus. The father’s income was found to be $87,000. She found that the Table amount of child support for the father was $688 per month, while for the mother, it was $560 per month. She determined the difference in their respective child support obligations to be $128, half of which was $64, an amount that she then grossed up by 50 percent to produce a figure of $96. Rogers J. raised this to $100 per month for ease of calculation.
11 Rogers J. indicated that she would not hear evidence from the mother concerning the financial hardship she experienced as a result of a move that she made for Christopher’s benefit, as this was not in the affidavit material filed before her. She remarked:
I can only hear about what’s already in the materials. So go from what the evidence is that you’ve introduced and you may wish to tell me how that relates to this but essentially there’s been a finding that there’s a fifty percent regime here. We’re just doing math today. Okay? [Emphasis added.]
1.2.2 Ontario Superior Court (Divisional Court) (2002), 62 O.R. (3d) 295
12 The Divisional Court found that the motions judge had failed to consider whether there had been any increased costs as a result of the shared custody regime, as required by s. 9(b), and that she had also failed to consider the factors listed in s. 9(c). Without this analysis, the court stated that it was difficult to determine how the support amount was calculated. The court also observed that there was a lack of judicial consensus on how support should be calculated under s. 9 and that the proper procedure was also an issue. The court reviewed the relevant portions of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp .), noting that the court was required to order the Guidelines amount except with respect to five discretionary situations: children over the age of majority (s. 3(2)); high income earners (s. 4); step‑parents (s. 5); undue hardship (s. 10); and shared custody (s. 9). The court noted the principles enunciated by this Court in Francis v. Baker, [1999] 3 S.C.R. 250, setting out the proper approach to the application of the Guidelines. Acknowledging that Francis v. Baker dealt with the proper approach to the exercise of the court’s discretion to deviate from the Guidelines amount where the payor’s income was over $150,000, the court determined that the same principles should apply to the other permitted deviations to ensure a consistent approach. The court held that in considering an application for deviation under any statutory exception, a court must first:
(a) make a presumption in favour of the Guidelines amount;
(b) impose an onus on the party seeking a deviation to establish on “clear and compelling evidence” that the deviation is in the child’s best interest;
(c) consider all the statutory factors noted in the section establishing a permitted deviation without providing pre‑eminence to any factor;
(d) deny any application for a deviation based merely upon invocation of the discretionary provision;
(e) focus on the child’s actual circumstances and not perceived parental fairness considerations, such as balancing of parental means. [para. 16]
13 The Divisional Court presented a three-step analysis for applications for deviation from the Guidelines amount, beginning with a determination of whether the applicant exercises a right of access for no less than 40 percent of the time over the course of the year. Secondly, the court must find that the presumption in favour of the Guidelines amount has been rebutted. This is satisfied if the applicant has discharged the onus of establishing on clear and compelling evidence that the decision is in the child’s best interests. The court stated that there is no right of deviation merely upon invocation of the discretionary provision of s. 9. The court must consider all the statutory factors without providing pre‑eminence to any factor. The focus of determination must be the child’s actual circumstances, not perceived parental fairness, such as balancing parental means. Finally, once the court makes the second finding and the presumption is rebutted, the court considers s. 9(a), (b) and (c) in the exercise of its discretion. In addition, the court adopted the view of the British Columbia Court of Appeal in Green v. Green (2000), 187 D.L.R. (4th) 37, 2000 BCCA 310, and rejected the formulaic approach to s. 9. It granted the appeal and increased support to $688 per month retroactive to September 1, 2000. The court was of the view that there was no clear and compelling evidence that the deviation was in the child’s best interest and that the motions judge was clearly wrong in law to depart from the Guidelines amount.
1.2.3 Ontario Court of Appeal (2003), 67 O.R. (3d) 703
14 Weiler and Rosenberg JJ.A., for the court, found that the Divisional Court had erred in its interpretation of s. 9 of the Guidelines. They held that once the applicant parent shows that the 40 percent threshold has been reached, there is no discretion at this early stage; the court must apply s. 9 and the presumptive Table amounts no longer apply. The Court of Appeal was also of the view that the motions judge had erred in adopting a formulaic approach. Recognizing that the courts in the country were generally divided on the proper approach to s. 9, the Court of Appeal indicated a preference for a structured discretionary approach in order to add a dimension of predictability and objectivity. Although the Court of Appeal expressed concern about the lack of information before the motions judge concerning the increased costs of shared custody, it was satisfied that there was sufficient evidence in the record to determine the appropriate quantum under s. 9 without falling back on a strict formulaic approach.
15 According to the Court of Appeal, Francis v. Baker could not be taken out of context and did not apply to s. 9. The court found that the Divisional Court erred in failing to consider the significant differences in wording contained in the various discretionary sections. In particular, the court found that the Divisional Court’s analysis introduced a presumption not called for by the language of the section, one that is also contrary to the principles of statutory interpretation. The Divisional Court was wrong in finding that there is no right of deviation merely upon invocation of the discretionary provision of s. 9. According to the Court of Appeal, where the 40 percent threshold has been met, the provision establishes the manner of calculating the amount of child support. The language of s. 9 requires the court to determine child support by taking into account the three factors contained in that section: paras. (a), (b), and (c).
16 The Court of Appeal explained that under para. (a), calculation of the simple set‑off amount was a useful starting point in determining the amount of support. The set‑off amount must then be adjusted in accordance with paras. (b) and (c). Under s. 9(b), the court found that it must take into account the increased costs of the shared custody arrangement. The paragraph recognizes that the increased access for one parent does not result in a dollar for dollar reduction for the other parent and that each parent must bear some of the burden of the additional costs. The court acknowledged that the appropriate method for accounting for the increased costs of shared custody is through the examination of evidence, but in the absence of such evidence, the use of a multiplier is a useful tool to recognize the custodial parent’s fixed costs, and to augment the figure arrived at after a simple set‑off. The Court of Appeal was of the view that under s. 9(b), the court could make common sense assumptions that the non‑custodial parent would have additional costs for variable items such as food, entertainment and transportation, but that evidence would have to be adduced if the parent wanted the court to consider any increase in fixed costs such as those associated with larger accommodations. Finally, according to the Court of Appeal, para. (c) gives the court a broad discretion to take into account the actual situation of the parents and children in ordering support. The court indicated that one goal should be to ensure that the child enjoys a comparable standard of living in both households.
17 Weiler and Rosenberg JJ.A. then applied these factors to the circumstances of the case. They started with a simple set‑off and chose a multiplier of 67.6 percent because the mother’s accommodations costs were 67.6 percent of her fixed costs for the child. This produced a figure of $215. The court noted that the father had not provided any evidence of increased costs for Christopher, so it made the common sense assumption that variable costs for food and entertainment had risen pursuant to s. 9(c). The court went on to consider the spending patterns of both parents for the child, noting that the mother’s expenses were $403.41 and the father’s $270 per month, for a total of $673.41. The court found that the ratio of the father’s salary to the mother’s salary was 55:45, and that the father should therefore pay 55 percent of $673.41 or $370, the mother being responsible for $303. As the father was only paying $270 per month, the court found that he should pay the mother an additional $100 per month, to be added to the set‑off amount of $215. The mother’s monthly RESP payment of $153.84 for Christopher was then factored in by the court, and divided on the same ratio. This resulted in the addition of $84.61 to the $315, for a total of $399.61 in support to be paid by the father. As there was no evidence of financial hardship before the court, no increase under s. 10 was ordered.
18 The court determined that the motions judge had erred in making the reduced support award retroactive to the time the father first requested a reduction because the father had never increased support in accordance with the cost of living as required by the agreement of the parties.
2. Analysis
2.1 Interpretation of Section 9 of the Guidelines
19 In order to determine the correct interpretation to be given to s. 9 of the Guidelines, it is necessary to examine the words of the provision in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Guidelines, the object of the Guidelines, and the intention of Parliament (see, e.g., Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21; Francis v. Baker, at para. 34; Chartier v. Chartier, [1999] 1 S.C.R. 242).
20 Before turning to the heart of this case, it is important to point out what is in essence an issue of semantics. Parties and courts across the country have inconsistently referred to the parents under s. 9 as the “custodial” parent, “non-custodial” parent, “payor” parent and “recipient” parent. There is no perfect terminology. However, it is clear that in a shared physical custody arrangement, given the nature of child support, one cannot ignore that a transfer of money from one parent to the other will almost always occur. Thus, for sake of clarity, I will use the concepts of “payor” parent and “recipient” parent.
21 For ease of reference, I again reproduce s. 9 of the Guidelines:
9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
22 The mother submits that there is a presumption in favour of the Guidelines that applies to the exercise of all discretionary powers, including those found in s. 9. According to her, the onus is on the party seeking a deviation to establish on “clear and compelling evidence” that the deviation is in the child’s best interest. She relies on this Court’s decision in Francis v. Baker. The same approach was taken by the Divisional Court. I cannot accept her argument.
23 In Francis v. Baker, I held that, under s. 4 of the Guidelines (see Appendix), which deals with the situation of high income earners (income over $150,000), there is a presumption in favour of the Guidelines amount. Guideline figures can only be increased or reduced if the party seeking such a deviation has rebutted the presumption of appropriateness. No right of deviation exists merely by pleading the discretionary provision. As earlier noted, s. 9 however expressly provides for a particular regime in cases of shared custody. This implies a departure from the payor/recipient model that comes under s. 3. In fact, s. 3 recognizes that the calculations under that provision will not apply where “otherwise provided under these Guidelines”.
24 While ss. 3(2), 4, 5 and 10 (see Appendix) provide a framework establishing a structured discretion, each provision incorporates distinct factors which are absent in s. 9. Sections 3(2) and 4 specifically prescribe that the amount in the Guidelines is mandatory unless the court considers that there are reasons to find that it is inappropriate. Section 9 does not contain such a presumption. As submitted by the father, if the drafters of the Guidelines had intended this approach, they would have used the same words to provide for direction in all of the relevant sections. In fact, the wording of s. 9 is imperative. The court “must” determine the amount of child support in accordance with the three listed factors once the 40 percent threshold is met. There is no discretion as to when the section is to be applied: discretion exists only in relation to the quantification of child support (J. D. Payne and M. A. Payne, Child Support Guidelines in Canada 2004 (2004), at p. 254).
25 Given the presumption of consistent expression, it is possible to infer an intended difference in meaning from the use of different words or a different form of expression: R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 164. Consequently, the reliance by the mother on the presumption enunciated in Francis v. Baker cannot stand and the Court of Appeal was correct in distinguishing the decision.
26 F