I can just imagine the family law client coming back from their lawyer's office totally confused because somewhere in the legal gobbledygook thrown at the client were what appeared to be the promising words of "shared custody".

To phrase it as John Grisham might:

"The client's brow was creased as if overwhelmed in deep thought. His attorney had mentioned something ...  shared custody ... but there had been so many other words "split custody" ... "joint custody" ... "divorce" ... " guardianship" ... " alimony"... And yet, even then, as the wind howled outside, there had been something about "shared custody" that seemed to excite the attorney." © L. Duhaime, 2012

Shared custody means that the child has two homes - his father's and his mother's - and more or less spends equal, or almost equal time at each.

It has been defined as:

"A situation where a child spends about an equal amount of time in the care and home of each of the two separated parents, and the parents share the legal rights in regards to the child."1

Shared custody has two features of extreme importance to separating parents: equal time and equal parenting and decision-making rights.

Equal Time

The first is the recognition that both parents are equal and should have equal time with their child - usually, one week with Parent A followed by one week with Parent B.

shared custodyAnd that is the nexus of shared custody: it is not that less desirable option of the child living with Mon and seeing Dad every second weekend and a Wednesday night here and there. It is the embodiment of the principle expressed tentatively and almost reluctantly in the family law of every jurisdiction in free and democratic societies: that it is in the child's best interest to share equal time with each parent.

For some reason, none of the statutes come right out and say this. Even the 2012 federal Divorce Act, at §16(10), reads like an equal time teaser:

"In making (a custody) order ... 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."

Some go backward. In the new 2013 family law in the Canadian province of British Columbia, this:

"In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed .... that parenting time should be shared equally among guardians."2

Generally, the family law statutes in Canada defer to the esoteric principle of the best interests of the child. Still one can readily distill from the hundreds of thousands of family law cases that populate the modern law reports that an attractive point for custody decisions is often shared custody (equal or almost equal time), though few judges would come right out and say that.

However, because the elected body is still reluctant to simply put this principle in the statute as a formal starting point, the judges are tentative to make bold statements that shared custody should be the starting point.

But the slow, poky evolution of the law seems clear.  Shared custody is the future.

Of course, shared custody does not work in all cases. Not every separating parent wants to pay for an extra bedroom for their kid. Shame on them but some separating parents have an even less desirable attitude:  they relish the bachelor life and would prefer paying straight child support and seeing their child less often. Some simply can't accomodate shared custody because of job requirements.

With older children, the child may not want a shared custody arrangement for a variety of reasons such as friends in the neighbourhood or the relative angst in one home compared to the other. When this option was presented to me in 1977 by my father, when I was a 17-year-old with separating parents, I declined mainly because the invitation was only for me not and for my two younger sisters, from whom I did not want to be separated.

Equal Rights

Another feature of shared custody is the implicit sharing in the decision-making process regarding the child.  However, in most cases where there is a more traditional custody-access situation, the courts will finagle a joint decision-making process unless it is resisted by the noncustodial parent.

There are certainly examples out there  of access parents who do not have the right to participate in the decision-making process as regards their child but they are becoming increasingly rare. You would practically have to be a jailbird or a drug addict to not get an order of equal rights in the decision-making process of the child's life - or get the wrong judge on the wrong day (sorry, the system is not perfect).

The cool thing about shared custody is that the parents are implicitly equal in this regard - but not always a good situation because a stalemate can be dangerous for child and can result in litigation.

Child Support

In a simple world where mathematics and arithmetic reign supreme,  shared custody would have the logical consequence of canceling out reciprocal child support obligations.

shared custodyBut, of course, there are social workers in the world and God bless them, because that would not always be fair where one parent is, for example, a Supreme Court of British Columbia judge earning $288,100, and the mother is a paralegal earning $35,000.3

The solution to this, at least in Canada, is the shared custody child support formula (§9 of the Guidelines). Essentially,  you take the amount of money the higher earning parent would pay but for the shared custody, and you subtract from it the amount of money the lesser earning parent would pay but for the shared custody,  resulting in a flow of money  from the higher earning parent to the lesser earning parent, but in the result, lower than in a situation other than shared custody.

For that Supreme Court judge? His formula would be as follows:

  • Under the Guidelines, Judge would pay $2,344.94 a month.
  • Under the Guidelines, ex-wife, paralegal: $318
  • Net monthly child support payment, shared custody formula, judge to ex-wife: $2,026.94.

This, of course, in addition to any special or extraordinary expenses which would be shared proportionate to income.

40% Rule

For want of a better idea and, arguably, there is none, Canada has adopted a 40 per cent rule for shared custody.  In other words, in order to benefit from the shared custody child support payment scheme, a claimant support payor would have to show to the court that in fact, he has the child  within his care and custody 40% of the time in a calendar year.

There would always be some situations which would not fit a strict formula and for that, the transfer guidelines, with the best of intentions,  has provided for two escape valves - invitations to the courts to not rely on the strict formula taking into account:

"... the conditions, means, needs and other circumstances of each spouse and of any child (§9(c); (and)

"(A) court may award an amount of child support that is different ... if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship (§10.1)."

You can just imagine the questions that arise from this and each one has been painfully argued, debated and decided upon by Canadian courts. For example, when a child is dropped off at daycare or school by Parent A, but picked up after school by Parent B, to whom is the school time credited? What about travel time between the two homes?

Perhaps the worst difficulty is where there is a suspicion that one or the other parent is intentionally attempting to push or resist access time to ensure that they can avoid or benefit from the financial consequences of shared custody. One of the most depressing lessons for any caring young lawyer is to discover that money often motivates in family and estate cases -  not fairness or the best interest of the child - but plain and simple money.

Legal Advice

Access and custody time should simply be decided upon taking into account the best interest of the child and not the financial consequences of that hovering 40% threshold.

Roger the barrister with loveIn theory, that should mean giving the ex-husband, the other parent (or, in some cases, the ex-wife), all the access he or she wants and take the hit on child support. Que sera sera -  make the decision based on the best interest of the child.

The difficulty for many custodial parents is challenging, though, as the difference in full child support and child support based on the shared custody formula might be enough to force them to sell their home. In any event, in most cases, the loss of child support would be enough to prevent the custodial or primary residence parent from providing the child with all that they desire to provide the child with - skiing lessons, new skates etc.  Obviously, some but not all of these concerns might directly impact the best interests of the child.

The other advice with shared custody is not to chase it if you don't mean it. If you are not able to be present with your child during your shared custody time, don't ask for it and most certainly resist financial motivation. If, however, like most fathers or mothers who are separated, you can't get enough time with your child, then assert your entitlement to shared custody immediately, as soon as possible because you may never have a better opportunity than at the start.

The other way many parents arrive at a shared custody arrangement is simply by attrition -  access time is increased informally and frequently until a shared custody situation exists in fact.  And when the de facto shared custody arrangement is pointed out to the child support recipient, accompanied by an explicit or implied request for an adjustment to child support, don't be surprised if all Hell breaks loose.  Many family law lawyers have seen these situations resolved by the recipient parent by the unilateral curtailing of access to make sure it is below the 40% threshold,  and daring the other side to commence expensive litigation. And the truth is, litigation has to be started immediately so that when the facts are given to the judge, the evidence of recent financially-motivated cutbacks of access are fresh.

Conclusions

The truth is that the vast majority of separated parents write their own law as far as the sharing of custody and guardianship of their children. They remain on good terms - if not friends - and freely and generously adjust access from time to time taking into account scheduling issues in each other's lives. They do not resent new partners found by the other parent and in fact are both civil and polite towards all members of the other family.

This article is more for those unfortunate individuals who find themselves caught up in the Hunger Games of shared custody - where disputes over access are hot and emotional and where dispute resolution is inevitable. In that latter case, you now have a basic knowledge.

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