Rebecca Family Law FW

i. In C(SS) , the court held that the test can be met where intercourse was not engaged in due to the repugnance to engage the partner in the act 2. Outside prohibited degrees of consanguinity and affinity  First marriage needs to be ended by divorce, nullity, or death before second marriage is valid  Also, a crime 3. Consent Capacity  Capacity threshold is very low – must have basic and functional understanding ( Durham ) o In Banton , an 88-year-old man’s marriage to a 31-year-old was valid. Although he lacked testamentary capacity and the ability to manage his own finances, the court held he could understand the nature of the relationship and therefore the marriage was valid. Duress  Court is not empowered to determine if consent was given readily or for improper motive ( S(A) )  Test for duress is subjective – must be an absence of free choice (S(A)) o Court has to consider the age, maturity, vulnerability of the complainant  Forced marriage – when people coerced against their will and under duress (physical or emotional) = null (S(A))  Arranged marriage – different than forces = valid Age  At common law: o Marriage between people under the age of 7 is void o Boys between ages 7 and 14 = marriage is voidable o Females between 7 and 12 = marriage is voidable  Civil Marriages Act o Minimum age requirement is 16  Marriage Act o Between 16 -18 prohibited without consent Formal validity = ceremonial requirements for marriage  Falls within provincial jurisdiction  Governed by law of the place where the ceremony is performed  Presumption of valid marriage under the AB MA  A marriage that does not comply with the law of the place of the ceremony may be recognized as a valid common law marriage where it is a) impossible to conform to the local form of marriage; or b) parties have not submitted to local law ( Hassan ) o In Vo , the couple got married in Vietnam and never registered in Alberta. The court held that because they had proper ceremonies in Vietnam and lived as though they were married, there was nothing to rebut the presumption VOIDABLE + VOID VOID: Marriage never existed VOIDABLE : Marriage was valid until a court declared it void (retroactively voids marriage) FLA: Marriage includes void marriage and voidable marriage FPA: Spouse includes a former spouse and a party to a marriage notwithstanding that marriage is still voidable ANNULMENT + DIVORCE ANNULMENT: Marriage was void from the beginning  More expensive and more of a complex test DIVORCE: Dissolves the marriage as of the of judicial decree SAME SEX MARRIAGE  Halpern – common law definition of marriage becomes “voluntary union for life of two persons of all others”  Adult Interdependent Relationships Act is gender neutral  Civil Marriage Act – marriage is not void or voidable if a couple is of the same sex

o Extended to unmarried couples in Pettkus  In Pettkus , Dickson J stated, in regard to the third element, “ where one person in a relationship tantamount to spousal prejudices herself in the reasonable expectation of receiving an interest in property and the other person in the relationship freely accepts benefits conferred by the first person in the circumstances where he knows or ought to have known of that reasonable expectatio n, it would be unjust to allow the recipient of the benefit to retain it” o No reason not to apply it to ‘common law’ couples o In that case, the partner who contributed to bee-keeping enterprise in other partner’s name was entitled to a beneficial interest in the properties because her contributions were clearly linked to the acquisition of property, it created an unjust enrichment on the other partner  In Sorocchan , the SCC revised the test and stated it was no longer vital to the determination of ‘no juristic reason’ that the claimant expected to share in the property held by the respondent. o The court also held constructive trust cases should not be limited to the acquisition of property. A contribution relating to the preservation, maintenance or improvement of property may also suffice o Constructive trust should only be imposed where 1) monetary compensation would be inadequate or insufficient and 2) there is a direct link between the plaintiff’s contribution and the property o Resulting trust is not a thing anymore.  Required a common intention that husband held title for the benefits of both spouses  Ex. give someone money for the express purpose of holding it for the benefit of both parties  Rejected in Murdoch UNJUST ENRICHMENT Baranow , basis for claims  Provision of unpaid services  Unrecognized contributions to the acquisition, improvement, maintenance or preservation of specific property  Joint family venture – contributions of both parties results in an accumulation of wealth and one party retains a disproportionate share of jointly earned assets o Hard to do a detailed accounting of contributions made and benefits received o No presumption of joint family venture o Cohabitation does not entitle one party to a share of the other’s property Baranow , unjust enrichment test  Whether the D has been enriched by the P o Must show something was given, which the D received and retained o There must be a tangible benefit (can include sparing an expense)  Whether the P has suffered a corresponding depravation o The enrichment must correspond to a depravation the plaintiff suffered o Absence of juristic reason  Apply established categories o gift, contract, disposition of law, other common law, equitable, or statutory obligations o defendant to show why the enrichment should be retained  Consideration of the reasonable expectations of the parties (gift or contract) and individual autonomy – whether the parties expectations show that retention of the benefit is just  Moral and public policy arguments about whether the enrichments are unjust Baranow , remedies  Repay or reverse unjust enrichment o Money – should be considered first  Both value received and value survived approach to the calculation are permitted o Property – constrictive trust where the plaintiff can demonstrate a substantial and direct link between their contributions and the acquisition, preservation, maintenance or improvement  share is proportionate to contribution

Household Goods  Should be applying for household goods at the same time as family home  s. 25 – allows exclusive possession of household goods (s. 73 FLA)  Must be ordinarily used and enjoyed by one or both spouses SPOUSAL SUPPORT ENTITLEMENT DA : s. 2(1) - Married spouses only FLA: s. 46(g) married spouses (and formerly married spouses) and AIPs ( s. 56 )  AIp couples look to DA analysis per Midora DA  S. 15.2(4) –Court has to consider the condition, needs, means, and other circumstances of each spouse , including o Length of time of cohabitation o Functions performed by each spouse during cohabitation, o Any order, agreement, arrangement relating to the support  S. 15.2(5) – Court must not consider misconduct of a spouse in relation to the marriage o Fault plays no role in this o Not about one party being wrong  S. 15.2(6) – An order should (no objective paramount – compensator y per Moge ) o 1. Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown o 2. Apportion between the spouses any financial consequences arising from the care of the child of the marriage  distinct from child support which gets to the direct cost of children, this is about the indirect cost of having kids o 3. Relieve economic hardshi p arising from the breakdown of the relationship o 4. Promote economic self-sufficiency within a reasonable period of time  S. 17(1)(a) – (per Pelech, need a causal connection ) can vary, rescind or suspend, prospectively or retroactively, a support order o S.17(4.1) – Court must satisfy itself and consider that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the order or last variation was made o S. 17(6) – Shall not consider conduct FLA  Can apply for AIP support under this act - also SS  S. 56 – Every spouse or AIP has an obligation to provide support for their former spouses or AIP  S. 57 – Court can make an order for spouses/AIPs where: o Spouses have obtained a declaration of irreconcilability under s. 83 o Spouses are living separate and apart, or o Not living separate and apart but are experiencing discord and can’t be expected to live together, or one spouse has refused to provide the necessaries of life to the other  S. 58 – Must consider the condition, means, needs and other circumstances of each spouse/AIP, including: o Length of time cohabitated o Functions performed during cohabitation o Any order, agreement or arrangement relating to support, o Legal obligation to support someone else, o Extent to which payor’s ability to pay is increased by someone else contributing to their household expenses o Extent to which recipient’s ability to pay is reduced by someone else contributing to their household expenses  S. 59 – Court shall not take into consideration any misconduct except where it is arbitrarily or unreasonably precipitates , prolongs, or aggravates the need for support or affects the ability to pay o Can take into the impact of this misconduct – ex. one party arbitrarily cuts them off  S. 60 – objectives read the same as the DA but with AIPS Common Law  Pelech trilogy  SS should not continue indefinitely – need a causal connection between changed circumstances requiring more support and the marriage  Moge  leading case on long-term marriages o SS is meant to relieve the economic hardship that results from the marriage or its breakdown o Focus is the effect of the marriage in either impairing or improving one party’s economic prospects

Different ways in which people can be parents (different than guardianship) PATERNITY Family Law Act  s. 7(2) - the following persons are the parents of a child: o His birth mother and biological father , o If the child was born as a result of ART, a person identified in section 8.1 , o A person specified as a parent of the child in an adoption order or recognized under the CYFEA.  S. 7(4) – a person who donates human reproductive material or an embryo for use in ART without the intention of using the material or embryo for his or her own reproductive use is not, by reason of the donation, a parent of a child born as a result  s. 7(5) – a person who is married to or in a conjugal relationship of interdependence of some permanence with a surrogate at the time of the child’s conception is not a parent of the child born as a result of the ART  s. 7(6) – all distinctions between the status of a child born inside marriage and a child born outside marriage are abolished  s. 8 – biological father – if more than one person that these point to then no presumption Does not apply to ART o (1) A male presumed to be the biological father if he was  married to the birth mother at the time of child’s birth  married to the BM within 300 days before child’s birth of the child if ended by death, nullity, divorce  married to the BM after the birth and has acknowledged he is the father  cohabitated with the BM for at least 12 months when the child was born and acknowledged he is father  cohabitated with the BM for 12 months and cohabitation ended less than 300 days before child born  registered as the parent at joint request with the BM under VSA  found by court to be the father s.8.1 – Applies to ART - If man  man and the person he was in a relationship with that consented to it, if female vice versa  s. 9 – declaration respecting parentage ( standing to dispute ) o If there is a dispute or any uncertainty as to whether a person is a parent under s. 7(2)(a) or (b), the following persons may apply for a declaration that the person is OR is not a parent  Person claiming to be parent  Person claiming not to be parent  Can order DNA evidence ( ABCD )  Child  Parent of the child (if child under 18)  Guardian  Person who has care and control of the child  S. 48 - a person is deemed to be standing in the place of a parent if he is the spouse of the mother or a relationship of interdependence of some permanence and has demonstrated a settled intention to treat the child as his own child o Intention to parent is objective , if someone is standing in the place of the parent they incur support obligations  Look holistically at the nature of the relationship and such factors as to  whether the child participates in the extended family in the same way a biological child would,  whether they discipline the child,  whether they represent that they are the parent,  whether they provide financially ( Doe )  In JRM , although he was not the biological father or living with the mom for a 12 month period before the baby was born or AIPs, the court still held he was a father because he had loco parentis throughout – settled intention ART FLA  S. 7(4) – a donation does not mean you are a parent  S. 7(5) – married to a surrogate – you are not a parent  S. 8.1 & 8.2 – discuss parentage by ART or surrogacy  S. 8.2 – You may make agreements where surrogate agrees to have baby for you – but cannot enforce it if to give their child to you  s. 82(8) – an agreement where a surrogate agrees to give birth to you is not enforceable o It may not be used as evidence of the surrogate’s consent o It may be used as evidence of intent to be a parent born through ART

o Per Kruge r – best interest of the child are not fostered if the parents are unable to work together. Question is whether a reasonable measure of communication and cooperation is in place o Per Kaplanis – hoping that parents communication will improve after litigation is over does not provide sufficient basis for making an order of joint custody o Don’t forget a parenting plan **? Sole Custody  Where the children live with one parent who as authority to make all day-to-day and major decisions for the welfare of the children. The other parent can still be given liberal contact and access. Best for parents who are not able to communicate with each other Parallel Parenting  Each parent makes decisions about different things  Ex. mom makes decisions about education and health, Dad makes decisions about religion and extracurriculars o Terwin the court found they were both good parents and had a lot to offer the kids therefore there will be a detailed or parallel parenting plan Decision making  young v young sharply divided about the proper role of the custodial and access parents – majority promoted meaningful relationship  dissent characterized other parent as a passive bystander who is excluded from decision making process GUARDIANSHIP FLA s. 20 - Guardianship – (WHO)  (1) person is a guardian who. o determining who is a guardian of a child o parentage is different than the test for determining guardianship  (2) Subject to this section, a parent of a child is a guardian of the child if the parent o (a) has acknowledged that he or she is a parent of the child, and o (b) has demonstrated an intention to assume the responsibility of a guardian in respect of the child within one year from either becoming aware of the pregnancy or becoming aware of the birth of the child, whichever is earlier.  (3) For the purposes of this section, a parent has demonstrated an intention to assume the responsibility of a guardian in respect of a child by o (a) being married to the other parent at the time of the birth of the child, o (b) being the adult interdependent partner of the other parent at the time of the birth of the child or becoming the adult interdependent partner of the other parent after the birth of the child, o (c) entering into an agreement that meets the requirements of the regulations with the other parent to be a guardian of the child, o (d) marrying the other parent after the birth of the child, o (e) cohabiting with the other parent for at least 12 consecutive months during which time the child was born, o (f) with respect to a female parent, carrying the pregnancy to term, o (g) with respect to a child born as a result of assisted reproduction, being a parent of the child under section 8.1,  (4) If sexual assault – not a guardian Guardian – s. 21 (WHAT)  S.21(1) –  Exercise the powers and responsibilities in the best interests of the child  (2) – default is that both guardians can exercise responsibilities unless court orders otherwise o Provide info to the other guardian o Best effort to cooperate with each other o Can enter into an agreement with respect to allocation of powers and responsibilities  (4) right to be informed and consulted about all significant decisions affecting the child o Sufficient contact to carry out those powers and responsibilities  (7) make decisions in sync with evolving capacity of the child Guardian – s. 21(5) (RESPONSIBILITIES)

 In A.M. v J.M . , the father was granted custody on an ex parte order after he had concerns for the children’s safety. The question before the court at the comeback hearing was whether the court should consider the existing status quo . The court held that the status qui was irrelevant because the ex parte order was obtained by the husband unlawfully by failing to disclose all relevant information  In Spencer v Spencer , however, the court did rely on the status quo in determining who should be granted custody.In that case, the BCCA held that the it was necessary to consider whether the lives of the children should be disrupted by taking them out of a safe and secure environment and putting them in a new one. The court held that changing the status quo was an unnecessary risk that the children might lose a sense of security. FAMILY CONDUCT  DA: s. 16(9) – past conduct cannot be considered, but if it is relevant to the parenting capacity the court can consider it and it may reduce parenting time o new divorce act is going to allow it more  FLA: s. 18(2)(vi) – Consider family violence, including impact on o Safety of the child and family members o Child’s general wellbeing o ability of the person to care for a child o appropriateness of making an order that requires guardians to cooperate  FLA: s. 18(3) – family violence includes causing or attempting to cause physical hard to the child or other family member, including forced confinement or sexual abuse or causing a reasonable fear for safety  = past conduct alone is not sufficient, has to be a link between the past conduct and their ability to parent ( isakhani ) o In S(J) – the court held that in terminating guardianship under s. 25 must consider the best interest of the child under s. 18 – need to consider the greatest possible protection of the child’s physical, emotional and psychological safety CULTURAL CONTEXT  Usually in the best interests of the child that the child should live with /have access to a family that would nurture their cultural identity ( Van De Perre ). o Culture can be a factor in determining the best interests of a child o Biracial children should be encouraged to positively identify with both racial heritages o Children benefit from being exposed to their culutre  Kids should be connected to their cultural heritage ( Perron ) ALSO can make conditions on custody order – does not need to be sole custody o Courts should be particularly sensitive to the language of education where only parent speaks the language and they do not have custody MINIMIZING CONFLICT • In this case, there is often attempts to undermine the child’s relationship with their other parent • Can have a huge impact on their children, parent think they are doing what is best but usually the dispute can have a negative effect on the child • Parents lose sight in their role in impact of that conflict on children • Science shows that long-term, intense conflict can turn toxic and add stress and this has a negative impact on children o Parents can’t sleep, eat, fall into depression – children are more susceptible to the conflict o Can have a detrimental effect on children and should be of great concern to the lawyers and judges VIEWS AND PREFERENCES OF THE CHILD  Why is this important? o The FLA and new divorce act put an emphasis on the views and preferences of the child being a factor in determining the best interest of the child under section 18(1) and 16(3) respectively o Also the UN convention of the rights of children of which Canada is a signee requires that the legal systems have mechanisms in place to ensure the children’s views and preferences as to their needs and interests are articulated in court o Children have right to a voice but not a choice  Stefureak v Chambers 2004 ONSC o How to ascertain a child’s views and preferences – four ways:  evidence of trained professionals  evidence of parties

o Parental behaviours that make rejection or alienation more likely  Harsh, rigid, punitive parenting style  Outrage at child’s challenge to his/her authority  Passivity or withdrawal in face of conflict  Immature, self-centered in relation to child  Loses temper, angry, demanding, intimidating character traits  Counter-rejection behaviour  Lacks empathetic relationship to child o Test is still BIC – consider the willingness of the person seeking custody to facilitate access with the other parent  Where a child has been alienated, low weight to their views since they are not their own  Usually need an expert – there is an access to justice issue  Older children will often make their own decisions - LN CHILD SUPPORT FLA S. 50 – 50(1) Subject to this section, the court may make an order requiring a parent to provide support for his or her child on application by (a) the child, (b) a parent or guardian of the child, (c) a person who has the care and control of the child, or (d) any other person with the permission of the court where the court considers the application would be in the best interests of the child. S. 50(2) – The court can make an order if the parents are living separate and apart, the court doesn’t expect them to live together, the person neglected to provide the necessaries of life, or the child is not in their care or control o More detailed about when and how and who – on divorce act it is about spouses DA 15.1 (1) A court of competent jurisdiction may, on application by either or both spouses , make an order requiring a spouse to pay for the support of any or all children of the marriage . DA – people who were married FLA – people who are not married WHO IS A CHILD? DA: “Children of the marriage” s. 2(1) child of the marriage means a child of two spouses or former spouses who, at the material time,  (a) is under the age of majority and who has not withdrawn from their charge, or  (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; ( enfant à charge ) FLA: “Child” s. 46 (b) “child” means (i) a person who is under the age of 18 years, or (ii) a person 18 years of age or older who is under his or her parents’ charge and is unable by reason of (A) illness, (B) disability, (C) being a full-time student as determined in accordance with the prescribed guidelines, or (D) other cause to withdraw from his or her parents’ charge or to obtain the necessaries of life; DO STEP-PARENTS PAY? DA: Applies to “spouses” under 15.1. Section 5 of the FCSG states that where the spouse is standing in the place a parent for a child, the mount of the child support order is such that the court deems is appropriate, having regard to the guidelines. FLA: S. 47 states that a parent includes anyone standing in the place of a parent. Section 48 provides that a person is standing in the place of a parent if the person

(a) is the spouse of a parent of the child or is or was in a relationship of interdependence of some permanence with a parent of the child, and (b) has demonstrated a settled intention to treat the child as the person’s own child. In Chartier , the court held that the material time requires a consideration of the circumstances and needs of child at trial, with regard to the relationship between the stepparent and child when the relationship was intact. The court also held that factors to consider include intention of the parties, the child’s perspectives, the stepparent’s perspective, whether the child extended into he family unit, whether the stepparent provided financially, whether the stepparent disciplines the child or represents to the word that they are responsible for the child In H(KA) , the step child withdraws from the relationship and builds a relationship with her biological father. Thus, the court held in that case the step-parent would not need to continue to be financially responsible for her HOW MUCH DO THEY PAY? Weigh the factors – ask how much they stood in the place of a parent. S. 5 of the FCSG asks the court to consider any other parent’s legal obligation to pay.  joint and severely liable ( Chartier ) ADULT CHILDREN Over the age of majority DA: 2(1)(b) – the child is over the age of majority but by “other reason” is still in their parent’s charge. This other reason can include post-secondary education. There is no time limit. Court will look to s. 3(2)(a) of the CSG to take into account the condition, needs, means.  In Achkewich , the ABQB, at para 4, applied a presumption of parental support for the first degree, up to four years absent other considerations. However, the presumption can be rebutted if the child is partaking in part-time studies, they have resources, questionable intentions, or they are undertaking a second degree.  This principle was refined in Walsh , where the ABQB held that further factors can be considered, including whether the child has applied for student loand and other financial assistance, the career prospects from such degree, ability of the child to contribute, whether the child is demonstrating success, and whether a mature child has terminated the relationship. o Terminating the relationship is not determinative  The table amount cannot apply where the child is not living with either parent (B(l) v v(PA)). CSG – REGULATIONS UNDER THE DIVORCE ACT OR THE FLA DA: Guidelines apply (if married = DA) 15.1 (3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines. 15. 1(4) Can make an order interim, definite, or indefinite duration, and may impose terms and conditions as it sees fit 15.1(5) Can deviate from CSG if (a) an order or agreement (property or support) would directly or indirectly benefit the child in another way, or other arrangements have been made, or (b) it would result in an amount that is unequitable OR a diff amount if on consent (15.1(7)&(8)) FLA: Determining child support (if not married = FLA) 51(1) In making a child support order, the court shall do so in accordance with the prescribed guidelines. (2) Notwithstanding subsection (1), a court may award an amount that is different from the amount that would be determined in accordance with the prescribed guidelines if the court is satisfied (a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the parents or the division or transfer of their property directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child, and (b) that the application of the prescribed guidelines would result in an amount of child support that is inequitable given those special provisions and the court shall record the reasons for its decision. (3) or on consent WHY USE CSG? Other than requirement by law, they establish a fair standard of support for children that ensures the children continue to benefit from the financial needs of both parents and reduces conflict and tension

 Awards will recognize that expenditures vary with income  Children will benefit from the means of both parents DETERMINING INCOME  Must disclose income tax returns, notice of tax assessments and reassessments, statements of earnings from employers, financial statements, etc  s. 16 total income from filing  Imputing income o a. 19 permits a court to “impute such income to a spouse as it considers appropriate in the circumstances, which circumstances include …  Intentional unemployment or underemployment  Spouse is exempt from paying tax  Spouse pays a lower tax rate from a different country  Income is being diverted  Property is not reasonably utilized to generate income  Spouse unreasonably deducts expenses from income  Spouse derives income from sources taxed lower  Spouse is beneficiary of a trust Self Employed or director of corporation 18 (1) Where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse’s annual income as determined under section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in section 17 and determine the spouse’s annual income to include  (a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or  (b) an amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income. S. 17 requires the court to look at a pattern of income over the past three years and determine an amount that is fair and reasonable  In Cunningham , the court held the guidelines are to be interpreted purposively and are meant to establish a fair standard of support to ensure the child benefits from the financial means of their parent o Duty to disclose is part of the obligation to pay (evidential onus under s. 18 – 21) have to show expenses are reasonable Gifts  Gifts aren’t included in the enumerated list in section 19. They are not included in presumptive income because they are not taxable ( Bak ). However, the court must look to the duration, regularity, whether it does more than provide the basics, the likelihood of continuing, etc to determine if it bears a similarity to a trust or should otherwise be imputed income. In Bak , the court held the gifts received by a father were not imputed income because they did not provide more than the basics and there was no suggestion they would continue. Underemployment  Must prove the person engaged in a deliberate course of conduct for the purpose of evading child support obligations ( Keating ) S.3 + S. 7  3 is monthly table amount + s. 7 special and extraordinary expenses For special expenses = need to be on the list – need to be reasonable – need to be necessary  S. 7 o child care o medical and dental care o health related expenses not covered by insurance (in excess of $100/year) – ortho, counselling, OT, speech, prescription, hearing aids etc o extraordinary school programs o extraordinary extra curriculars

 s.7(1.1) Extraordinary means a) expenses the recipient cant reasonably covered by the table amount, or an amount related to special talent, recipient’s income, overall cost, nature and number of activities, any other factors. Amount is to be shared (s. 7(2)) and need to take into account subsidies, benefits, and income tax deductions relating to the expense  High income earners  Necessary and reasonable o Add-ons must be necessary in relation to the child’s best interest and reasonable in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation High income earners  Court has a wider discretion under section 4 but reasonable needs for wealthy children are higher. If one parent is claiming it is too high they need to show – consider the child’s needs and payor’s ability to pay ( R v R ) SHARED PARENTING  s 9 of the FCSG - id one parent has custody over 40% - the amount of support is the difference between that each parent would otherwise pay a support order was ordered against them  set-off o Calculate the amount the high-income earner would pay, incl s. 7 expenses o Calculate the amount the lower income earner would pay o Subtract the lower amount from the higher amount, and this is the amount the high-income earner will pay  However, can’t just look at set-off, must dig into the facts. There is no presumption if the table amount under section 9 ( Contino ) o 1. calculate set-off  2. s. 9(b) review child expense budgets and actual spending – look at all expenses for both parents – requires consideration of overall increased costs of child rearing for both parents, disproportionate assumption of spending by one parent – should be proportionate  3. s. 9(c) consider ability of each parent to bear the increased costs and the standard of living in each house o 1. respective incomes o 2. disparity in income o 3. Assets and liabilities of each o 4. child’s standard of living in each house (should be similar, income e of new spouse is relevant)  4. consider whether it is a variation or an initial order/arrangement o Obviously not fully relying on initial  Calculating the 40% is holistic RETROACTIVE CHILD SUPPORT RETROACTIVE SUPPORT  Three stage approach per DBS : o Determine whether a retroactive award is appropriate  Consider reason for recipient parent’s delay, conduct of payor parent, past and present circumstances of the child, and any financial hardship imposed by a retroactive award o Determine what period the award should cover  If the payor has engaged in ‘blameworthy conduct’ – retroactive period can last much longer  If not, date is date on which they gave notice of a request for support  If neither of those, should not exceed three years o Adjust the commencement date is required  Once commencement date is set, the court determines quantum but can change the commencement date as required to ensure fairness  In McBean , the mother took too long to make an order for support and therefore no retroactive award in this case. Also significant that Dad had always paid over and above what he was asked and she never submitted her income information as required. 