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Contino v Leonelli-Contino, 2005 SCC 63

Facts:

Parents of children agreed on separation agreement that included joint custody of this kid. The kid lived with their Mother on a daily basis, but had generous access to their Father, and the Father paid $500 in child support (this was increased to $563 in settlement minutes). Later the Mother enrolled in a night course, and asked the Father to care for the kid for additional night each week. Father agreed but applied to vary child support pursuant to s.9, because this now meant kid was with the Father 50% of the time. Income: Mother – 68K, Father – 87K

Ratio:

There is no presumption in awarding at least the table amount for child support. The court must look to the listed factors in s.9 once the 40% threshold met. Test:
**(a) Court must take into account applicable table for each of the parents
**(b) Adjust for the increased costs of shared custody arrangements
**(c) Adjust for other conditions, means, needs and other circumstances of each parent and of any child
***Not every $ spent by payor will result in $ saved by recipient

Analysis:

Judicial History:
**Trial: said Father had to pay table amount (relying on Francis) because didn’t provide evidence as to why he should not have to pay that amount
**Court of Appeal: reduced the amount of child support payable by Father
***Once s.9 applied there was no longer presumption that Father should pay table amount. Required individualized fact specific approach

Concluded that a discretionary approach was appropriate, having regard to s.9. Court applied 3 factors from s.9, said Father should pay $500 (because no evidence that Mother's expenses decreased, or that Father's expenses increased).

S.9 is a complete system.

Holding:

Court varied the child support award from the table amounts and relied on s.9 to award an appropriate amount

Comments:

Application for extraordinary expenses (usually under s,7) can be dealt with here under s.9 when have shared custody arrangement, because it is a complete system.

Step-by-step method for calc quantum:
*1. Determine simple set-off amount (9(a))
*2. Review Child Expense Budget – look at all parent’s spending patterns of each parent
**These expenses should be apportioned between parents in accordance w/ respect incomes
*3. Consider ability of each parent to bear increased costs of shared custody and the standard of living for the children in each household
*4. Distinguish between initial orders and variation (9(c))


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