How to Calculate Shared Custody Percentage and Payments in BC?

How to calculate shared custody percentage in BC can be done in many ways, including: 1) the number of hours each child spends with a parent 2) the number of days a child spends with each parent 3) which parent can add the number of hours a child is at school or activities as a part of his or her parenting time and most importantly 4) the percentage of custody the child has with each parents over a one year period. 

BUT WAIT!

Yap. That’s right. But do not be afraid. I will show you how to avoid the above by taking the proper legal steps.

In this article, I will explain the following:

1. How to calculate shared custody percentage of time with your children for court or legal purposes; 
2. Why despite having shared custody, you may STILL have to pay the total amount of child support to the other spouse; 
3. How to avoid having to pay the total child support and ensure the courts set off your income and your ex’s income for child support purposes; 
4. What types of children’s expenses you can claim while the children are in your care, and  
5. How to show your ability (or lack thereof) to pay child support.

How to Calculate Shared Custody Percentage in BC?

The courts have the discretion of counting the time in hours, days or taking a more holistic approach when it comes to calculating shared custody percentage in BC. But when there is a serious dispute on exactly what percentage of time children spend with each parent, the courts usually look at hours. Also, if the child is at school or an activity during a particular day, those hours typically count towards the time of the parent who picks up the child from school for his/her parenting time. So if you have the children from after school on Friday until Saturday. Your parenting time starts from the time the child is dropped off at school until Saturday. 

In many custody or parenting time situations, parents are cooperative and take care of their children when the other parent is not available. So, for example, you and the other parent may have a formal, ‘on paper’ custody arrangement where you have the children in your care 30% of the time, but in reality, you have them with you over 40% of the time because the other parent asks you to care for them when he/she goes on vacation, is ill, needs to work more, etc. If on paper, you have the children with you less than 40% of the time, you will have to pay full child support based on your income. The income of the other parent or the custodial parent will not matter.

But when you notice that you are going over the 40% threshold, you can ask a judge to recognize the informal custody situation and allow you to pay less child support because now, given that you have the kids over 40% of the time, your expenses are much higher for both food, shelter, transportation, etc. and paying the total amount of child support in such situation may not be fair.

The 40% concept has been the subject of much commentary by judges. It is sometimes used to avoid paying child support or withholding the children from the other parent in hopes of obtaining child support. In the case of Berry v. Hart, the BC Court of Appeal stated:

[6]         In a world where the budget of one or both parents is likely to be pinched, this linkage can create real pressure to increase or decrease parent-child time where it is near the 40/60 divide, creating financial reward or penalty that may be disproportional to the short time that is said to qualify or disqualify a situation from the application of s. 9.  While I do not say such is the case here, I note that the learned Chambers judge queried whether one or other of the parents was manipulating time for financial reason.  Courts would be unrealistic, in my view, in failing to recognize that the 40 percent provision of s. 9, if approached with slavish accounting of small units of time, aggravates both the s. 9 financial incentive and financial disincentive inherent in an increase of a child’s time with the minority-time parent. 

How to Prove You Have Children in Your Care More than 40% of the Time in BC

You have to prove to the judge that you have the children more than 40% of the time over an entire year. The best practice is to keep a log of the number of hours or entire days the children stay with you over that year and then attach that log to your affidavit, which would, in turn, swear that information to be true.

If the other parent disputes your calculations, you have to find different ways of proving them, such as getting other witnesses like your new partner or children to confirm your calculations. If you win on showing that you have the children more than 40% of the time in your care, you still have another test to overcome before being able to reduce your child support payments. 

A judge has the discretion of ordering you to pay the total amount of child support even if you have the children in your care more than 40% of the time.

If You Prove Shared Custody in BC, You May Still Have to Pay the Full Amount of Child Support

Once you prove that you have the children in your care more than 40% of the time, the court will look at Section 9 of the Federal Child Support Guidelines, which provides:

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.

Back in 1997, the Child Support Guidelines came into force which stated that if a child spends more than 40% of the time with each parent, then s.9 of the Guidelines would kick in to force. This section would allow the court to set off parents’ incomes against one another and lower child support payable. Most people think once they have children in their care more than 40% of the time, the amount of child support will be automatically lowered because the incomes of each parent will be set off against one another. Wrong. 

In shared custody situations when each parent has the child over 40% of the time, the court may still ask one parent to pay the other the total amount of child support by considering the “conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought”. 

In Berry v. Hart, the husband proved that he had his children in his care more than 40% of the time. Yet the court ordered him to pay the total amount of child support because the wife’s needs and means necessitated the total amount of child support based on the husband’s income. The husband was earning a healthy income, and she was not working and was going to school. Her spousal support payments were also based on a 40/60 situation. So the court stated:

In my view, Ms. Hart’s present circumstances, needs and means argue against an adjustment.  On the other side are the expenses that Mr. Berry undoubtedly incurs while he houses the children, a factor under s. 9(b).  These include rent, food expenses and the expenses implicit in providing housing and care for young people.  However, it must be recognized that the actual increase in Mr. Berry’s parenting time which triggers s. 9 is not great and has not increased appreciably his fixed expenses such as housing.  While the variable expenses are put more upon his budget than Ms. Hart’s as a result of the time-sharing arrangement, his circumstances are not unduly pressed.  The chambers judge concluded, based on the circumstances revealed to her in the affidavits, that an adjustment to child support would not be in the children’s best interests.  In all the circumstances I do not consider that a fair application of the s. 9 factors compels a reduction in child support such that one can say the chambers judge erred in principle in declining to order a reduced amount.

How To Reduce Child Support Payments in Shared Custody Situations

Having the children more than 40% of the time in your care means you will have significant added expenses for caring for them. If the other parent insists on you paying the total amount of child support despite the shared custody situation, you will need to show that the costs of food, shelter, transportation, clothing, etc., are significant. And your income is not sufficient to both pay for the children while in your care AND pay the total amount of child support to the other parent. To make sure you obtain the set-off amount of child support in shared custody situations, make sure you have the following evidence that would convince the judge to order a lower amount of child support:

1. First, make sure you can conclusively prove that you have the children over 40% of the time by way of logs and affidavits as explained above; 
2. Provide a summary spreadsheet or a financial statement showing the expenses you have to pay for the children while in your care. Make sure you itemize the expenses. Do not exaggerate the expenses. They can be as follows for each child:
   1. Food;
   2. Shelter;
   3. Activities;
   4. School supplies;
   5. Toiletries;
   6. Cosmetics;
   7. Gifts;
   8. Transportation;
   9. Child care costs;
   10. Tutors;
   11. Hot lunches;
   12. Cellphone payments;
3. Next, show the judge how your income will not be sufficient to pay for yourself, the children while at your care, and then the total amount of child support while the children are at the other parent’s care. To do this, you need to show the judge through calculations that there would be an income shortfall if the court asked you to pay the total amount of child support.
4. Use this program to calculate the set-off amount of child support and show that amount to the judge. Also, show the judge the total amount of child support. Prove to the judge that you can only pay the set-off amount at best.

To learn specific strategies for your shared custody case and get a complete analysis on how you can win, contact our award-winning lawyers at 604-974-9529 or get in touch.