June 22, 2021 – CBA endorses rebuttable presumption!
Readers of this service will know that Gene C. Colman and others have advocated that there be a legislated rebuttable presumption for Equal Shared Parenting. The Canadian Bar Association and others have long opposed any sort of rebuttable presumption. But now, hold onto your hats, the CBA has come out in favour the concept. Do not get too excited though. The CBA now advocates that this concept should be applied to child support calculations where both parents are obliged to pay child support to each other (ie. where residential time is shared approximately equally). The CBA says that the government should amend the Federal Child Support Guidelines in order to simply set off the two parents’ respective child support obligations without having to enter into the unduly complicated calculations that section 9 of the CSG currently mandates. So much for their arguments that family justice has to be individualized! A number of different groups including some of which I am directly associated have come out in support of our friends at the Canadian Bar Association. Here is the email that we sent earlier today to the Federal Justice Minister. Enjoy.
2021-06-22 VIA EMAIL
Hon. David Lametti
Minister of Justice and Attorney General of Canada
284 Wellington Street
Ottawa, Ontario K1A 0H8
Federal Child Support Guidelines – Shared Parenting Formula and Guidelines Review
We are writing in qualified support of the recent proposal submitted to you by the Canadian Bar Association (CBA) calling for changes to the Federal Child Support Guidelines (FCSG) to provide a heretofore lacking presumptive formula for situations of shared care. With an estimated 22% of Canadian families with shared parenting – ranging from a low of 9% in Alberta to a high of 30% in BC- this matter deserves attention.
We concur with the CBA assessment that application of the current Contino v Leonelli-Contino standard is “not practical in most cases”, “costly in time and money, and the process is especially daunting for self-represented parties given that the Guidelines offer no guidance on how to navigate these complex matters”.
However, we suggest that the straight offset proposed by CBA is inappropriate as it makes the underlying impossible assumption that children in a shared care relationship meeting the 40% parenting time Guideline threshold are in fact simultaneously resident in both households 100% of the time. We suggest a simple technical correction of multiplying the proposed straight offset by 75% to reflect that the children reside in each household approximately 50% of the time and that the costs of dual residency are 150% of single residency based on the accepted (but not empirically confirmed) assumption by the courts of an additional 50% fixed cost allowance for the second residence.
In addition, we urge that the federal/provincial/territorial governments undertake a long overdue economic review and update of the FCSG beyond the minor tax adjustments that have been done at approximately five year intervals. Canada stands alone among Five Eyes countries in not having modernized its Guidelines since their promulgation in 1997. Most jurisdictions have abandoned the obsolete Percentage of Obligor Income (POOI) approach underlying the FCSG Revised Fixed Percentage rule in favour of an Income Shares approach as is the case in Quebec.
We would be pleased to review the above points with you or your staff.
Respectfully submitted on behalf of the seven organizations named below:
George Piskor MASc SM LLM PEng
Vice Chair, Equal Shared Parenting Working Group
Endorsed by: Action des nouvelles conjointes et des nouveaux conjoints du Québec; Canadian Association for Equality; Canadian Equal Parenting Council (Conseil Canadien Pour Le Rôle Parental Égal); Equal Parenting for Children; Lawyers for Shared Parenting; Leading Women For Shared Parenting (Canada); Real Women of Canada