“It must be noted that “achieving the 40 per cent threshold does not necessarily mean that less child support will be paid, but only that the court can consider the issue under s. 9 of the Federal Child Support Guidelines” (Gauthier v. Hart, 2011 ONSC 815, [2011] O.J. No. 1169).
In fact, it is not that the “court can”, but rather, the court must proceed under s. 9 when the 40 per cent access threshold is achieved. It is clear from the wording of the legislation that s. 9 is imperative; therefore, when the court finds that a parent is exercising access or custody 40 per cent or more of the time, the court must fix child support in accordance with the three factors listed in s. 9 of the FCSG.
Under s. 9 there is no presumption that the Guideline support amount is appropriate. Rather, support is determined by applying the three factors, informed by the evidence provided by the parties.
The onus of proving that the 40 per cent access threshold is met falls on the spouse seeking to invoke s. 9 (Meloche v. Kales, [1997] O.J. No. 6335; Huntley v. Huntley, 2009 BCSC 1020, [2009] B.C.J. No. 1509). In this case that rests with the father.”