“I want to have the kids 50/50” is a phrase I hear a lot. This is a more informal way of saying that after parents separate, they want to share parenting time with their children in a way that meets the definition of s. 9 of the Federal Child Support Guidelines. The formal definition of “shared parenting” is as follows:
Shared parenting time
9 If each spouse exercises not less than 40% of parenting time with a child 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 parenting time arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
Sometimes, people think that “shared parenting” means automatically having a “week on – week off” parenting schedule. While this is one such schedule, it is not the only possible schedule. Also, remember the definition is having the children “not less than 40%” of the time, “over the course of a year”. Therefore, it is sometimes necessary to take a broader view of the actual parenting arrangements that have been in place over time.
Schedules
There are a lot of different parenting schedules that fit the definition of “shared parenting”. As the schedule provides that each parent has the child at least 40% of the time, we call it “shared parenting”.
The most common of these schedules are:
- “7 on – 7 off” also called “week on – week off”.
This schedule is just like it sounds. Children would stay with each parent for a week, being exchanged usually on the same day each week. Typically, I see the exchange date being Sunday or Monday, but it can be any day of the week.
- “3-4-4-3” rotation.
This schedule has your child spend 3 days with one parent, then 4 days with the other parent. Then it switches, and the child spends 4 days with the first parent, followed by 3 days with the other parent.
- “5-5-2-2” rotation.
This schedule has your child spend 5 days with each parent and then 2 days with each parent.
A quick google search can provide you with other schedules that fit the definition. For example, see HERE for one such website. The most important thing is that the schedule is one that fits the needs of the child.
Meeting the 40% Threshold
Sometimes parents try to “rig” the parenting schedule to make sure that the other parent doesn’t meet the 40% threshold to qualify for shared parenting, or to make sure that they do meet it themselves.
These sorts of cases are typically very unhappy situations because it means one parent (or both) are trying hard to manipulate the “40%” threshold to suit their personal agenda. The outcome can have an impact on the amount of child support payable or received, so this is an unfortunate motivator for some parents.
Whether to “count” days by nights, or by hours of any given day, is a challenging exercise that I prefer to avoid entirely (but sometimes, cannot). My view (which aligns with that of the Courts) is that the child’s needs come first. The schedule needs to fit the child’s needs and wishes. The preferences of a child have an increasing degree of relevance as they get older, but this not determinative on its own – many factors come into play.
The correct approach is to first decide what schedule suits the child’s needs, then secondly, decide what child support arrangements follow from that arrangement.
Is Shared Parenting Always Best?
Not always. The law does not automatically presume that shared parenting is best for any given child. The law in BC is that each case is to be examined individually, based on the needs of any specific child.
Shared parenting works best when both parents are willing to work together to make it work. Shared parenting requires a high level of co-operation between parents, and it requires both parents to take a similar level of personal and financial responsibility for meeting the needs of the child at all times.
When Shared Parenting Won’t Work
There are several reasons why shared parenting may not work. These reasons might include:
- The parents are so poor at getting along and communicating with one another, that they are not able to work together to ensure consistency between homes or communicate important parenting information between them.
- The parents live far apart from one another, and the travel to/from the other parents’ home or the child’s school is too far, so shared parenting is impractical.
- One parent’s work schedule is too unpredictable or irregular to suit the needs of the child, or one parent works out of town or travels frequently and cannot commit to a regular shared parenting rotation.
- An older child does not wish to have a shared parenting arrangement.
- One parent cannot meet the needs of the child.
Shared parenting really only works well when both parents commit to working co-operatively to provide the best living arrangement for their child.
Child Support and Cost Sharing in Shared Parenting Arrangements
One of the biggest “myths” about shared parenting is that “I don’t have to pay child support if I have my kids half the time”. That’s incorrect.
If you refer to the section 9 definition above, there are three factors that determine how child support is calculated in any given shared parenting arrangement.
By far the most common payment arrangement for child support in shared parenting arrangements is the “offset” payment of child support (over 95% of the time in my estimation). While there are exceptions to this rule, offset child support means that each parent calculates what they would be obliged to pay the other under the Federal Child Support Guidelnes Calculator (find it HERE) and then minus one amount from the other.
To illustrate:
- Tom and Sara share parenting time with their son Tyler on a shared parenting schedule within the meaning of s. 9 of the Federal Child Support Guidelines.
- Tom earns $75,000/yr. His child support obligation for his son Tyler would be $716/month.
- Sara earns $120,000/yr. Her child support obligation for Tyler would be $1,113 per month.
- Therefore, Sara would pay offset child support to Tom in the amount of $1,113 – $716 = $397 per month.
Offset child support means that BOTH parents pay and receive child support. They pay it to each other, even if there is ultimately a net offset amount being paid from one to the other.
There may be disputes about what someone’s income actually is, or actually should be. That is a topic for another article.
Who Pays for What in Shared Parenting
Shared parenting presumes that there are two fully operational residences for the child that each entirely meets the needs of the child. This means two sets of clothes in each household, two sets of toys, two sets of furniture, two sets of books, two sets of sports equipment (bikes, skis) and so on – unless the parents agree to share these things.
Shared parenting means that each parent pays for food and clothing and other items in their own home. Sometimes the parents might choose to have certain items pass back and forth between homes or to share the cost of bigger ticket items. This might include such things as sports equipment (hockey gear or skis for example), boots, snowsuits and so on.
In shared parenting, both parents should be sharing costs like school fees, hot lunches, school trips, or grad fees. This is different than “primary parent” schedules, in which the sole support recipient would normally be expected to assume these costs.
Tax Issues with Shared Parenting
There are two big tax issues relevant to shared parenting: the Child Tax Benefit (“CTB”), and the Dependent Tax Credit (the “DTC”)
Briefly speaking, the CTB is the amount of tax benefit the government pays a parent monthly for a child. The DTC is a tax deduction that a party can claim on their tax return each year.
When there is a shared parenting arrangement in place for a child, BOTH parents are entitled to claim the CTB, but it is split between them. In other words, each parent can claim half, but their half is calculated on their own income. So, the amount of CTB each parent receives will not be the same. Also, if a parent lives with a new partner, only one parent in the new household will receive the CTB, calculated on that household’s entire family income and the entire number of children and step-children in that new household.
The DTC is a tax deduction a parent can claim for a dependent child. In most cases, it is a significant deduction. If there is no agreement in place about this between the parents, the parent who receives child support (even an offset amount) is the only party allowed to claim the DTC deduction under CRA rules.
Its worth noting that CRA doesn’t always accept that the payment of offset child support really means that both parents are the recipient of child support, not just one. CRA rules don’t always line up with Family Law legal principles about shared parenting, and sometimes problems come up on these tax issues.
The most fair way to deal with the DTC is for each parent to claim one child to the CRA as their dependent (if there is more than one) or else to alternate years in which they claim a single child as their dependent. Again, this requires some co-operation between parents, and they ought to be agreeing on it. A party’s lawyer should be alert to this issue and will deal with it in a separation agreement. Accounting advice on tax issues such as these, will prevail over legal advice as different personal and specific factors might apply.
Summary
Shared parenting is not automatic after parents separate, and it ought to be put into place when it is best for the child. Shared parenting requires a lot of cooperation between parents to make it work. Child support is usually calculated on an off-set basis (but there are exceptions). Tax benefits and deductions are different than when only one parent is the primary parent.
No situation is alike, and situations change over time. There are often exceptions to the rules, and so legal advice ought to be sought in all cases. Do talk to a lawyer about all of these matters, as your case may not be typical.
If you wish to discuss how this impacts you or your business please reach out to us at 250-374-3344.
Disclaimer: This is not legal advice
By Rachel Lammers