Maximum Contact Versus Maximum Child Support: Which Is More Important?

Separation and divorce can be a wake-up call. For many separating couples, one spouse makes the decision to separate. In these cases, the other spouse is faced with feelings of rejection, sadness and anger. From this emotional journey, spouses are given the opportunity to re-examine their lives, their relationships, their values and their behaviours. In other words, separation affords spouses the privilege to make positive life changes. Some spouses treat separation as a signal that past routines were not fruitful and that new routines are needed. This can translate into changes to health and fitness, employment and relationships with children, family and friends.

Consider an example of such a transformation. Perry was a 48-year-old dentist who was married to Anne for 20 years. They had three children ages 12, 10 and 7. Perry and Anne met in undergrad. Anne fell in love with Perry's strong work ethic, focus and ambition. For the last 15 years, Perry worked tirelessly building up a significant income. He worked seven days a week. This income afforded the family a large home with a pool, two luxury cars, private school for the children, overnight summer camp and plenty of other luxuries for Anne and the children. Anne hadn't worked for years and was a full-time homemaker. Perry was rarely at home. He and Anne hardly spoke. He was disconnected from the lives of his children and only knew of their lives through emails from Anne that he would read in between patients. In effect, Perry was a stranger to his family. Although Perry built up a very successful dental practice, his personal life was a failure. Not only did his marriage suffer, he did not care for his health, ate poorly, gained weight and lost contact with his family and friends. Now Perry was faced with divorce.

After a great deal of soul searching, Perry began seeing a therapist and re-examined his past choices and future options. After separation, Perry began leaving work early a few times per week to work out. He stopped working on Saturdays and Sundays, and instead used that time to visit with his children, as well as his siblings, parents and friends. He also started attending parent/teacher meetings and his children's sports games and recitals. Perry made a radical change to his lifestyle. But, the trade-off was a reduction to his income.

In the years before separation, Perry was earning approximately $350,000. As a result of the changes he made to his lifestyle, Perry was now set to earn approximately $200,000. Of course, this change in income affected Perry's ability to pay support to Anne.

According to the Child Support Guidelines and the Spousal Support Advisory Guidelines, on an income of $350,000, Perry would pay Anne $5,491 per month in child support and $7,136 per month in spousal support, totaling $12,627 per month. With the drop in income, child support dropped to $3,331 per month and spousal support dropped to $3,467, totaling $6,798 per month. The overall annual change in support was dramatic: $151,524 per year plummeted to $81,576 per year.

Anne wasn't happy. She consulted her lawyer who explained to her the law.

Section 19(1)(a) of the Child Support Guidelines states:

“The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following…the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse.”

Section 16(10) of the Divorce Act states:

“In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.”

Anne was confused. Could she demand that Perry pay support based on his historical income? Or would Perry be permitted to voluntarily reduce his income in the name of better family health and relationships?

This is what lawyers and social scientists consider a moral dilemma.

It wasn’t a dilemma for the judge in Ward v. Ward [1999] O.J. No. 458 where the father reduced his overtime work because of his health and a desire to spend more time with his children. The judge said, “As for his desire to spend more time with his new family, there is nothing in his past to suggest that this has ever been a priority for him. A court should always be vigilant when faced with a contention that runs contrary to the historical pattern of conduct of a party. In the circumstances, I am not prepared to give effect to this purported familial epiphany of the petitioner.”

For Anne and Perry, there was no moral dilemma. Anne began seeing Perry in a new light and liked what she saw. They reunited and now enjoy a much more connected marriage and family life with fewer luxuries.

Steve Benmor is certified as a specialist in family law by the Law Society of Upper Canada and also serves as a private divorce mediator and arbitrator for high net worth families. Steve can be reached at steve@benmor.com