So, you are separated from your spouse. The children have split timings between you and the other parent. But it’s not equal timing. So it’s not 50% with each parent. You say that the child has been with you at least 40% of the time and 60% with the other parent.
The significance of 40% time is that child support is automatically adjusted if the child
spends 40% or more with one of the parents. If it is less than 40% then full child support is due by the payor parent.
How does one calculate this magical 40% time? Surprisingly, it is a meticulous mathematical process.
I’m going to share some of the important principles gleaned from cases and then I will do an analysis.
In L.L. v. C.M., 2013ONSC 1801, the following principles regarding the calculation of time are of noted:
(1) There is no universally accepted method for how to calculate access and custody time;
(2) However, the overwhelming weight of authority in Ontario and the other provinces supports calculating the 40% threshold on an hourly basis;
(3) If using days, to reach 40 per cent, the access parent must have the child in his or her care for 146 days per year;
(4) When calculating in hours, the 40 per cent threshold lies at 3504 hours per year;
(5) The relevant period is the amount of time the child is in the care and control of the parent not the amount of time that the parent is physically present with the children. The calculation includes the time the childspends in swimming lessons, at day care, at school, or with a nanny, so long as the parent claiming this time is the parent who during that period is “responsible for their well-being”.
Justice Sherr, of the Ontario Court of Justice in Toronto, who has given us so many fantastic judgments, in a case called Ciutcu v. Dragan, 2014 ONCJ 602 (CanLII), <https://canlii.ca/t/gf8qn> took the time, effort and trouble of actually breaking down the hourly time available for each parent on a normal / regular basis as follows:
[52] If the court counts the overnights that the children will spend with both parents each year, the parenting time with the father clearly exceeds 40% of the time, calculated as follows:
Regular Schedule:
40 weeks @ 3 overnights per week = 120 days,
12 weeks equally divided = 42 days
Total days = 162 or 44.38 % of the time
[53] If actual parenting hours are counted (and the mother is given credit for the time that the children are in school), the father has the children for 40.1% of the time calculated as follows:
Regular Schedule:
40 weeks @ 168 hours per week = 6,720 hours
Time with father – 2,640 hours (66 hours per week)
Holiday Schedule:
12 weeks @168 hours per week = 2,016 hours
Time with father – 50% = 1,008 hours
Adjustments:
Mother to have 4 weekends with the children = 264 hours
Father to have 3 extra statutory holidays = 72 additional hours
Father to have 3 professional development days = 60 additional hours with Thursday pickup.
Net adjustments = 132 less hours for father
Final Calculation:
Total hours in a year = 8,736 hours
Regular schedule = 2,640 hours
Holiday schedule = 1,008 hours
Adjustments = (132 hours)
Total hours with father = 3,516
Percentage of total time with father = 40.13%
Analysis:
If Justice Sherr could so painstakingly detail the number of hours that the child is with each parent or the total number of hours available in a year that each parent has with a child, why can we not do the same?
What this requires is a detailed notation of actual calendar time with hours that the child is with each parent. It takes time, and effort on our part to do so.
In a calendar, we simply have to take the time day by day in a 24 hour period and detail under whose care and control the child is applying the above caselaw principles. We then make a note whether it’s with a mother or with the father.
We do this on a daily basis, then on a weekly basis, then on a monthly basis and finally on a yearly basis and include the summer time as well. Yes this takes time and yes this takes effort.
But if we make the effort of keeping a detailed notation through the help of a calendar, we can reap the benefits during a motion or at trial. In other words, if we do the hard work now we will definitely gain its fruits in the long run.
At Shankar law, we will help you with the analysis given above. We will tell you upfront your strengths and weaknesses as a result of the analysis. So there are no surprises generally at the hearing. We welcome you to our offices in the Grey, Bruce region and the towns of Owen Sound, Port Elgin, Wiarton, Kincardine or virtually from anywhere in Ontario. We are always here to help you navigate your Family Law, Criminal Law, and Real Estate matters.
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