Child Support and Shared Parenting in New Brunswick: The 40% Rule

Many parents in New Brunswick end up with a schedule that is close to equal. One of the first questions that follows is whether child support still has to be paid, and whether it shrinks or disappears because both homes have the children a lot of the time.

The short answer is that a near-equal schedule can change the calculation, but it does not cancel support automatically. This article walks through the default rule, how income is counted, what the 40% rule does, and how it differs from split parenting and undue hardship.

This article covers the law of New Brunswick.

The starting point: the table amount

Under the Federal Child Support Guidelines, the presumptive rule is that a child support order is the amount in the applicable table. That amount depends on the number of children, the province where the paying parent lives, and the paying parent's income.

On top of the table amount, the court can add special or extraordinary expenses under section 7. These can include child care, the child's share of medical and dental insurance premiums, and post-secondary education. Extracurricular costs count only if they are extraordinary.

How income is worked out

Annual income is generally taken from the Total income line of the T1 General tax return, adjusted under Schedule III of the Guidelines. If that figure would not be the fairest measure, the court can look at the last three years. Parents can also agree in writing on an income figure, if the court finds it reasonable.

The court can also impute income that it considers appropriate. Examples include a parent who is intentionally under-employed or unemployed, or who claims unreasonable expense deductions.

What the 40% rule in section 9 does

Where each parent has the child for not less than 40% of the time over the year, the court must consider three things: the table amounts for each parent, the increased costs of shared parenting, and the condition, means, needs and other circumstances of each parent and the child.

This is not an automatic set-off. The court does not just work out each parent's table amount and subtract one from the other. The result depends on the incomes, the real costs of running two homes, and how each household is doing.

The law does not set out how the 40% is counted in the material we rely on here, so how time is measured in your case is a question to confirm with a lawyer.

Shared parenting time is not the same as a 50/50 schedule

Under the Family Law Act, where a child has more than one parent, the parents share parenting time and decision-making responsibility unless a written agreement or a court order says otherwise. That is not a presumption of equal time. The actual schedule is decided by what is in the child's best interests.

The law also says a child should have as much time with each parent as is consistent with the child's best interests. That is a guide, not a guaranteed 50/50 split. So whether you reach the 40% threshold depends on the schedule you agree to or the court orders.

Split parenting and undue hardship

An undue hardship claim has a built-in limit. It must be denied if the household making the claim would have a higher standard of living than the other household.

If spousal support is also being claimed in a divorce, the court gives priority to child support.

What to do next

• Write down the actual parenting schedule you follow now, and any written agreement or order that sets it.
• Gather your tax returns, including the last three years, and any income information about the other parent.
• List child-related expenses such as child care, insurance premiums and post-secondary costs.
• Do not assume a near-equal schedule means no support; the calculation depends on both households.
• Speak with a lawyer before signing an agreement that sets support or a schedule.

Frequently asked questions