The New Brunswick Court of Appeal's decision in ASL v LSL, 2020 NBCA 15, reaffirmed the high standard on judges determining child support obligations for parents with equal amounts of parenting time.
In ASL, the parties had a separation agreement, signed shortly after their separation, which provided the parents with roughly equal parenting time (also known as "shared parenting"). As the parents had similar incomes, they agreed that neither one of them would pay child support to the other. The parents agreed on the children's special expenses and shared the financial costs of these equally. There was a provision requiring the parties to exchange their income tax returns annually for the purpose of revisiting and reevaluating the support obligations. When the mother filed a petition for divorce in 2019, she requested that the terms of the separation agreement form the basis for the order of the Court when it granted the divorce. While the divorce proceeded on an uncontested basis, the father appealed the Divorce Order and the corollary relief on the basis that the trial judge should have requested and analyzed the full financial details of both parties to determine if the child support arrangements were appropriate considering section 9 of the Federal Child Support Guidelines. The Court of Appeal agreed.
Where one parent has the primary care of children, child support is determined on the basis of the Federal Child Support Guidelines under section 3 and using tables based on income from which the Court has little discretion to deviate from. When a parenting arrangement has the parties caring for the children equally (or with one parent at least 40% of the time), child support is determined under section 9, using the incomes of both parents as a starting point. ASL reminds us that the set-off amount determined by the difference in the amount each parent would be required to pay the other is only the first step of the inquiry.
Section 9, as confirmed by Contino v Leonelli-Contino, 2005 SCC 63, has always allowed for adjustments to child support to provide children with a more consistent standard of living in each parent's household, but it seldom resulted in judicial scrutiny in matters where the parties were in agreement that the set-off support amount is appropriate.
ASL has changed this, meaning the requirement for parents with shared parenting arrangements to provide detailed financial disclosure is much higher even when the divorce is uncontested. The effect of the decision in ASL means that parties can be required to submit details of their household budgets, the income information of new partners, and a breakdown of special expenses for the children and payment details to allow the court to determine if the straight set-off amount is appropriate or if further fine tuning is required to account for advantages the children may have in one household over the other. Appeal courts have raised the issue previously (Dyck v Bell, 2015 BCCA 520; F(G) v F(JAC), 2016 NBCA 21) but it was not until ASL that judicial inquiries into uncontested matters became the norm.
ASL provides three fundamental takeaways for lawyers and clients:
- Don't avoid the tough conversations with your former partner. If there is a provision to exchange financial information on an annual basis, adhere to your obligations. The failure to reevaluate child support obligations could result in unwanted judicial intervention.
- Financial disclosure for parents with shared parenting arrangements needs to be more detailed. If there is a significant disparity between households when it comes to the basic needs of the children, child support may be adjusted to address this need.
- Provide details – even when you agree. Ensuring full financial details are before the court, limits the need for appearances to answer further questions on financial arrangements for children.
The ASL decision requires family law lawyers to request, process and present more detailed financial projections for their clients so that the Courts can ascertain whether appropriate child support arrangements have been put in place. With the potential to increase both legal costs and court time, ASL's impact could be to act as a further impediment to access to justice if consistent principles are not applied. The introduction of standardized forms for submitting the required household budgets would streamline the procedure and limit the number of appearances for the parties wherein the main goal is judicial fact-finding. Every child has the right to receive the level of support that the parents are able to provide them. ASL reaffirms the Court's role in ensuring adequate support is provided to all children and that the priority of supporting children remains paramount in agreements made by parties.
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