My stepson and his commonlaw wife have a 3 yr old daughter.

Hello. I'm sorry that I didn't reply sooner, but some matters in my own law practise became complicated over the last couple of days and required my attention. I hope that we can continue where we left off.

If the court has made an interim order, the only thing that your stepson can do is appeal that order. That, or bring a motion to change the interim order, but that will require him to show that there has been a change in circumstances since that order was made. Appeals are expensive, and appeals of interim orders are especially iffy.

I hate to say it, but if your stepson had a decent lawyer from the outset then things may well have not gone so badly for him so quickly. Self represented people don't usually do very well when there's a lawyer on the other side.

Regarding the 60/40 split, it's true that when the time sharing gets to be around 50/50 then the court generally calls it "shared custody" and there's an offset on the child support amount. If I have my child half the time, and my income would mean a $700 per month child support to the mother, and her income would mean a $500 child support per month to me, then the court normally will order $$200 per month from me to her. This makes sense. If our incomes are approximately equal and we have the child approximately half time each, then there would be no support flowing.

Unfortunately, to get this 50/50, the parents generally either have to both want it, or that was the status quo before one parent took it to court. Sharing custody requires the parents to live fairly close together so that getting the child to and from school isn't a problem, and the parents have to be able to communicate almost daily. It's a shared parenting in the best sense, except that the parents don't live together.

The rules changed a few years ago on the set off issue. While judges would say that a 60/40 split is shared custody leading to a support setoff, that general rule led to arguments about which parent got the time that the child was in school, and similar stupidity. I once was on the receiving end of a motion where the father wanted an order that the children come to his place for their lunch hour because he was closer to the school than mom, and by having them for that 5 extra hours per week he'd be at the 40% mark and thus entitled to a support setoff. That obviously silly. These days, the setoff rule is a starting point and the judges can abandon that concept and often do.

It's absolutely not the case that if there's a 60/40 to 50/50 split that there's not support; if one party is earning more than the other, the set off amount of support will still flow, in fact it might be more or less depending on what the judge feels is the relative contribution towards the children's upkeep by each parent given the circumstances. If your stepson was told this, he's been misinformed. He should only listen to a lawyer, and only to his own lawyer.

You've raised the school issue, and it's a valid one. Generally, if a child goes to school from the care of one parent and returns to that parent's care after school, then school time counts as that parent's time. This is for a couple of reasons: if that parent is responsible for the sending and receiving, that parent is responsible generally for when the child is sick, goes home early for some reason, or when there's a PD day. If mom has to send the child off to school for 8:45 a.m. and be there at 3:15 p.m. to receive the child, that significantly hampers mom's ability to find convenient work, among other things. Maybe she can be a waitress over the lunch shift at a restaurant, or take some courses at a local post secondary institution, but that's about it. If one parent is responsible for getting a child to school and the other for getting the child from school, then they split those hours. The court isn't going to entertain the argument that the 6.5 hours of the school day counts for neither parent when one parent's day is defined by those start and end times. Even if, in your case, the father had the children every weekend and a month of the summer he'd be over 40% but the court would probably say that mother is the parent with primary residence and entitled to full guideline support.

The income and assets of mother in this case only bear on the father if the mother's household income and standard of living are so much greater than his that he can claim that she doesn't need full guideline support from him and for him to pay it would cause him undue hardship. Their qualifying for a $200,000 mortgage is essentially irrelevant. Maybe her new partner's parents cosigned the mortgage. Maybe he got an inheritance and they put half down on a $400,000 house leading the bank to consider its loan to be well protected, and they got a 25 year amortization for $900 a month with a cosigner. That's between them and the bank. I'm not saying that this mortgage is irrelevant, but it certainly isn't proof that mom and partner aren't entitled to support from your stepson. It could be, if they had 2 new paid-off vehicles and spent a month in Hawaii every year, but that mortgage by itself doesn't prove anything.

If your stepson is earning $32,000 per year and he has to pay full guideline for two children, the court would order $500 or $501 per month. That's what the guidelines say. She may be tacking on another $200 per month for extraordinary expenses, I don't know. But $700 base child support for two children on an income of $32,000 is simply not the right amount.

It sounds like your stepson is getting the shaft. The best advice I can give him is to get his own lawyer right away.

I hope this answers you. If not, please reply with your questions.

Good luck to you and your stepson.

Ulysses

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