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

Many parents with a 50/50 or close-to-equal schedule assume that nobody pays support because the child is with each of them about half the time. That is a common belief, but it is not how the rules work.

This article explains the 40% rule in the federal Child Support Guidelines, what the set-off method is, and how a New Brunswick court approaches shared parenting under section 9.

This article covers the law of New Brunswick.

What the 40% rule says

Where each parent has a child for not less than 40% of the time over the year, section 9 of the Guidelines applies. The 40% is measured over the whole year, so the real schedule you follow, including holidays and summers, matters more than a label on a document.

Outside that shared-parenting situation, the presumptive rule is that the order is the table amount for the number of children and the paying parent's province of residence and income, plus any special or extraordinary expenses.

What a set-off is, and why it is not automatic

A set-off simply means working out what each parent would pay under the tables and subtracting one figure from the other, so that the parent with the higher income pays the difference. It is a tidy method, and parents often assume it is the rule.

Under section 9, however, 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. It is not an automatic set-off. A set-off may end up being the result in some cases, but the court is not bound to start or finish there.

How a court decides under section 9

• The table amount each parent would pay, based on each parent's income.
• The increased costs of shared parenting, such as duplicating bedrooms, clothing and equipment in two homes.
• The condition, means, needs and other circumstances of each parent and of the child.
• Income, which is generally taken from the Total income line of the T1 General, though the court can look at the last three years or impute income where a parent is intentionally under-employed.
• Special or extraordinary expenses such as child care or the child's share of medical and dental premiums, which can be added on top.

Because the factors are open-ended, two families with the same schedule can end up with different outcomes. Large income gaps, different housing costs and different needs of the child all matter.

Related rules that can change the picture

Support and the parenting schedule are separate questions

In making a parenting order, a New Brunswick court under the Family Law Act considers only the best interests of the child, with primary consideration to the child's physical, emotional and psychological safety. The Divorce Act takes the same approach.

A child should have as much time with each parent as is consistent with the child's best interests, but this is a guide and not a guaranteed 50/50 split. Unless the parents have agreed in writing or the Court has ordered otherwise, parents of a child share parenting time and decision-making responsibility, but that is not a presumption of an equal-time schedule.

Do not agree to a schedule just to reduce support, or push for more time mainly to change the figure. Courts look at the actual arrangement and the child's needs.

What to do next

• Keep a calendar showing where the child actually sleeps over a full year.
• Gather both parents' tax returns and proof of child care, insurance and other child costs.
• List the extra costs you each carry because the child lives in two homes.
• Get legal advice before signing an agreement that sets support at zero or relies on an offset.

Frequently asked questions