The Child Support Guidelines state that there is a presumption that one parent pays the other parent child support according to the payer’s annual income and the “table” amount. [To see the child support tables, go to www.benmor.com, Links, Federal Child Support Guidelines]

For example, a non-custodial father of 2 children who earns $40,000 per year would pay a table amount of $570 per month. But a family court judge is given the discretion to deviate from the table amount and reduce the amount of child support payable if the payor has the children in his or her care for 40% of the time during the course of a year. The discretion is based on section 9 of the Child Support Guidelines.

Because there is no formula that can be applied in an equitable way in all circumstances, this discretion has caused confusion.

In the 2002 decision of Contino v. Leonelli-Contino, the appellate court set out guidelines for considering a deviation from the presumption that one parent pays the other parent child support according to the payor’s annual income and the table amount. The appellate court stated that there is a presumption in favour of the table amount. However, the parent seeking a deviation may establish on clear and compelling evidence that a reduction in child support is in the children’s best interest, and also based on the circumstances, as described in section 9 of the Child Support Guidelines.

This very issue was addressed by Mr. Justice Allan Boudreau in the Nova Scotia Supreme Court decision of Peters v. Graham (N.S.J. No. 452 (November 15, 2001)). The court ordered that a man whose wife deceived him into believing he was the biological father of twins for ten years pay child support, albeit at a reduced amount, since the children have two other fathers. Gregory Neil Peters argued that he should not have to pay support because he was misled by his ex-wife, Lisa Anne Graham, regarding the children’s paternity. The father stated that he would like to continue having a close relationship with the children, however, not as a father, but as a friend. The lawyer for the ex-wife argued that the decision should emphasize the best interests of the children and not focus on the actions of the parents. Under the Child Support Guidelines, a judge has the discretion to order a spouse or former spouse who is not a biological or adoptive parent, but who stands in the place of a parent, to pay child support.