Contino v. Leonelli-Contino [Indexed as: Contino v. Leonelli-Contino]
62 O.R. (3d) 295
[2002] O.J. No. 4620
Court File No. 621/01
Ontario Superior Court of Justice
Divisional Court
Carnwath, E. Macdonald and Czutrin JJ.
November 27, 2002
Family law -- Support -- Child support -- Principles established by Supreme Court of Canada as applicable to exercise of court's discretion to deviate from Guidelines amount where payor's income is over $150,000 also come into play when considering other statutory exceptions in Guidelines -- Presumption in favour of Guidelines amount existing where party invokes exception -- Party seeking deviation must establish on clear and compelling evidence that deviation is in child's best interests -- Court must consider all statutory factors applicable to exception in question without giving pre- eminence to any factor and must deny any application for deviation based merely upon invocation of discretionary provision -- Motions judge erring in allowing application to reduce child support on basis of shared custody provisions of s. 9 of Guidelines without considering all factors set out in s. 9 and in absence of clear and compelling evidence that deviation from Guidelines amount was in child's interest -- Federal Child Support Guidelines, SOR/97-175, s. 9.
The father applied to have child support reduced on the basis of the shared custody provisions of s. 9 of the Federal Child Support Guidelines. The motions judge granted the motion and reduced child support retroactively. The motions judge made no finding as to income as required under s. 13 of the Guidelines. There was no evidence before the motions judge concerning the factors set out in s. 9(b) and (c) of the Guidelines and no analysis by the motions judge of those factors. The mother appealed.
Held, the appeal should be allowed.
The principles established by the Supreme Court of Canada as applicable to the exercise of the court's discretion to depart from the Guidelines amount where the [page296] payor's income is over $150,000 per annum also come into play when considering the other statutory exceptions set out in the Guidelines. In considering an application for deviation under any statutory exception, a court must: (a) make a presumption in favour of the Guidelines amount; (b) impose an onus on the party seeking a deviation to establish on clear and compelling evidence that the deviation is in the child's best interests; (c) consider all the statutory factors noted in the section establishing a permitted deviation without giving pre-eminence to any factor; (d) deny any application for a deviation based merely upon invocation of the discretionary provision; and (e) focus on the child's actual circumstances and not perceived parental fairness considerations, such as balancing of parental means.
In construing s. 9 of the Guidelines, a court must employ a three-step analysis. The court must first determine whether the applicant exercises a right of access to or has physical custody of a child for no less than 40 per cent of the time over the course of a year. The onus is on the applicant. The attainment of the 40 per cent threshold does not lead directly to a consideration of s. 9(a