“The seminal case that addresses the analysis required to be undertaken by the court in a s.9 analysis is Contino v. Leonelli-Contino, 2005 SCC 63 (S.C.C.) (“Contino”), in which the Supreme Court of Canada held that the framework of s.9 requires a two-part determination: first, establishing that the 40 percent threshold has been met; and second, where it has been met, determining the appropriate amount of child support. The specific language of s.9 warrants emphasis on “flexibility and fairness”. The discretion bestowed on Courts to determine the child support amount in shared custody arrangements calls for acknowledgement of the overall situation of the parents (conditions and means) and the needs of the children. The case law under s.9 of the Guidelines suggests that the weight of each factor under s. 9 will vary according to the particular facts of each case.
The Contino analysis is meant to apply flexibility and fairness given the overall circumstances of the family, when looking at the condition, means and needs of both parents and the children. A “set-off” is not presumptive.
Section 9(a) requires the Court to determine the parties’ incomes and calculate the simple set-off, as the “starting point” of the s.9 analysis. However, the set-off amounts are not presumptively applicable and the assumptions they hold must be verified against the facts. The Court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another.
Further, according to Contino, section 9(b) requires that the Court consider the increased costs of the shared custody arrangements. Contino explains that the Court should examine the budgets and actual expenditures of both parents in addressing the needs of the children and determine whether shared custody has, in effect, resulted in increased costs globally because of the duplication of costs in providing two homes for the children. The Court should also consider the ratio of incomes between the parties as the childcare expenses will be apportioned between the parents in accordance with their respective incomes.”