In the case of Lekakis v. Lekakis, 2023 BCSC 376, the BC Supreme Court addressed how to determine whether the 40 percent threshold has been met to engage section 9 of the Federal Child Support Guidelines (“the Guidelines”). The section 9 set-off calculation for child support means that in the event the Children are shared between the parties, there is normally a large discount on child support because one parent’s child support amount is subtracted off from the others. The Court looked on how to calculate when this set-off applies for situations in which one parent has 40% of the time or more with the Children. In other words, section 9 of the Guidelines applies where “each spouse exercises not less than 40 percent of parenting time…over the course of a year.”
In this case, the arbitrator applied s 9 and set an order requiring the husband to pay interim monthly child support of $144 to his former spouse. The wife appealed the award, submitting that the arbitrator erred by applying s 9.
During its analysis, the Court considered the following principles, as found in the case of Maultsaid v. Blair, 2009 BCCA 102, for calculating whether the s 9 threshold is engaged:
- As a result of the express 40 percent threshold, a decision maker must make a finding of fact as to the amount of time over a year in which the parties exercise parenting time;
- There is no single method to employ in determining the amount of time a parent exercises for purposes of s 9 (in some cases, it may be appropriate to consider days because that is the gist of the order prescribing parenting time; in others, a calculation of hours may be appropriate), but it is clear (Maultsaid, para. 20) that where an order spells out when one party’s time begins and ends, and there is no agreement that could be said to alter the terms of the order, that party does not have time beyond that specified in the order to determine whether the 40 percent threshold is met;
- It is an error of principle to treat school time as neutral in the calculation;
- It is not open to the Court, faced with the express wording of s 9, an order particularizing the specific times at which each party’s parenting time begins and ends and a measure of the time that falls short of the requisite 40 percent, to ignore the mandatory requirement; and
- If the order does not specify a precise parenting time schedule and it is apparent on any view of the case that the arrangement is very close to the 40 percent threshold (“within a hair,” Maultsaid, para. 19), then it is a matter of judgment, not amenable to a simple time accounting exercise, where the broader context must be considered.
Considering the above principles, the Court found that the arbitrator failed to make a finding of fact for determining whether s 9 was engaged. In reference to the arbitrator’s characterization, the Court further stated that focusing on the quality of the time is not appropriate when determining whether the 40 percent threshold has been met and that when applying s 9, accounting in days may be misleading where one party only has a child for a few hours. Ultimately, the husband’s parenting time did not result in him meeting or exceeding the 40 percent threshold to engage s 9 and the Court amended the award to $2,309 per month.
So, as you can see, to achieve a set-off formula for child support, the Court has made this more reliant upon seemingly measurable factors. This approach may make it harder for claimants to meet the threshold compared to if more qualitative factors were considered in the threshold assessment. While the list set out in Lekakis is not exhaustive, the case showcases some important factors to consider in determining whether the 40 percent threshold has been met to engage s 9 of the Federal Child Support Guidelines.
