What is the impact of s. 9 of the Child Support Guidelines on the calculation of child support under a shared custody agreement?

British Columbia, Canada

The following excerpt is from D.W. v. L.R., 2008 BCSC 1115 (CanLII):

In my view, s. 9 serves to accommodate situations where the parents effectively share custody. It is intended to ameliorate the financial burden on a parent who exercises extensive access in appropriate cases. It is not intended to be used by one parent to “sneak over” or “sneak under” the ratio of time spent with the child so as to gain a financial advantage. A shared regime ideally envisages a flexibility in appropriate circumstances to meet the best interests of the child and, where possible, accommodate the work and social schedules of busy parents. That goal is lost where one or both parents anxiously and slavishly count up the days they spend with the child with an eye to their financial gain or loss. For instance, if one parent has unexpected work commitments, and the other, apparently in good faith, agrees to take their child for a longer period of time than is regularly scheduled, then it is not reasonable for the second parent to bring a s. 9 application and require a recalculation of child support. Similarly, planned holidays agreed upon in advance by the parties should not, by themselves, trigger a s. 9 recalculation. As Bastarache J. noted in Contino v. Leonelli-Contino, 2005 SCC 63 at para. 39: The specific language of s. 9 warrants emphasis on flexibility and fairness. The discretion bestowed on courts to determine the child support amount in shared custody arrangements calls for the acknowledgement of the overall situation of the parents (conditions and means) and the needs of the children. The weight of each factor under s. 9 will vary according to the particular facts of each case.

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