Desjardins v. Bouy: How do I determine whether I’ve passed the 40% threshold when calculating child support?

The case of Desjardins v. Bouy is a 2013 case that comes from the Alberta Queen's Bench.

Facts

The father argued that he had the children at least 40% of the time. Given this, he requested a reduction in child support.

The Law

According to section 9 of the Federal Child Support Guidelines:

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 year, the amount of the child support order must be determined by taking into account:

(a) The amounts set out in the 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.

In this regard, this Court adopts the position that in such a situation one is to count by hours (as opposed to days). Furthermore, having physical custody of the child for the purposes of section 9 means actually having the child in that parent's care. In situations where the child is not in the physical care of either party (ex: while the children are in school), the question is who has the responsibility for the child.

This section does not mean that the person who has the child for not less than 40% of the time is automatically entitled to an adjustment to child support.

Decision of the Alberta Queen's Bench

The father did not have the children 40% of the time or more. The Court also said that even if he had crossed the 40% threshold, the father did not provide the Court with records that supported an adjustment based on the factors listed in section 9 of the Federal Child Support Guidelines.