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  • Writer's pictureJared Davies, Lawyer

The 40% threshold for shared-parenting time and child support

If both parents have their child not less than 40% of the time, they are in a shared parenting arrangement pursuant to section 9 of the Child Support Guidelines. In these circumstances, child support will normally be determined based off each parent’s respective table obligation, with a set-off amount paid by the parent with the higher obligation, subject to section 9(b) and (c):

9 If each spouse exercises not less than 40% of parenting time with a child over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared parenting time arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

However, the guidelines are not clear on how a parent, or the court, is to arrive at the 40% figure. One big question is whether hours are to be examined or if days are to be examined in calculating parenting time. Also consider that the child will not be in either parent’s care 100% of the time since there are things such as school, extra curriculars, playdates with friends and more—so how does this factor in?

The Ontario Court of Appeal decision of Froom v Froom endorses the trial decision, which stands for flexibility:
2 There is no universally accepted method for determining the 40% and we do not think that this appeal is the appropriate case to make that determination. On the record before her, we are of the view that the trial judge did not err in the approach and the method she chose. That approach and that method were consistent with many trial decisions, which seek to avoid rigid calculations and, instead, look at whether physical custody of the children is truly shared.
Considering the Court of Appeal endorsed a flexible approach to calculating the 40% threshold, there is little in the way of a formulaic approach to this issue. Instead, it is more helpful to look at various principles the courts have relied on since Froom. Recent decisions have recognized L(L) v C(M), 2013 ONSC 1801 as one of the leading cases in this area of family law (e.g. Hogeboom v Hogeboom, 2018 ONSC 571; Edwards v McMahon, 2020 ONSC 2052, etc.).

L(L) v C(M), 2013 ONSC 1801 reiterates that the onus of the 40% threshold issue rests upon the parent seeking to invoke section 9 of the guidelines and further that the court cannot round up time to 40%, it is a strict calculation:

22 The onus of proving that the 40 per cent access threshold is met falls on the spouse seeking to invoke s. 9 (Meloche v. Kales, [1997] O.J. No. 6335 (Ont. Gen. Div.); Huntley v. Huntley, 2009 BCSC 1020, [2009] B.C.J. No. 1509 (B.C. S.C.)). In this case that rests with the father.

24 Courts cannot ignore this mandatory requirement in favour of rounding up in the case of access time that is close to 40 per cent

The court also notes that calculating the threshold with hours, rather than days, is a more common approach because it is more precise. However, Froom still suggests it is either-or. If the court is to look at hours, a parent would need 3504 hours per year to reach 40%. If the court is to look at days, a parent would need 146 days per year to reach 40%.

31 While there is debate over the best method for calculating access time, according to the late Professor McLeod in the Annual Review of Family Law, the issue is not as unclear as the majority in Froom asserted (McLeod and Mamo, Annual Review of Family Law, 2010 (Toronto: Carswell, 2010) at 294)). In commenting on Froom the review states, "[w]ith respect, the overwhelming weight of authority in Ontario and the other provinces supports calculating the 40% threshold on an hourly basis." This approach is applied by the court in Rockefeller v. Rockefeller, [2005] O.J. No. 1736 (Ont. S.C.J.). Its appropriateness is also affirmed in Gauthier v. Hart, 2011 ONSC 815, [2011] O.J. No. 1169 (Ont. S.C.J.), although in that case the parties' evidence did not support an hourly calculation so it was not applied.

32 While the notions of flexibility and robust consideration of the parties' circumstances are laudable, I do not see this as mutually exclusive from an hourly accounting of how the parties divide their child's time.

33 The comments in Mehling make a great deal of sense and we should certainly urge consideration of the parties' circumstances beyond a simple minute-by-minute accounting. However, the court can be attuned to these important surrounding circumstances while still looking at an hourly breakdown of how the child's time is divided. Further, in Mehling, the court urges that the calculation should be in "days or weeks or portions thereof". This is acknowledgment, even in a decision that pushes for the utmost flexibility, that time will often need to be broken down into units smaller than days.

37 The two most common approaches to calculating access and custody time are in days, and in hours. 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 (Handy v. Handy, [1999] B.C.J. No. 6 (Sask. K.B.). When calculating in hours, the 40 per cent threshold lies at 3504 hours per year (Claxton v. Jones, [1999] B.C.J. No. 3086 (B.C. Prov. Ct.)).

The court further alludes to the fact that the important question is how much time the child spends in the “care and control” of the parent, not necessarily the amount of time in the physical presence of the parent. This implies that a parent can still have parenting time even if the child is not immediately in their presence.
38 In his paper, "A Practitioner's Guide to the Economic Implications of Custody and Access under the Divorce Act and the Federal Child Support Guidelines", Julien D. Payne points out that no matter how the calculation is completed, 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 ((2002) 32 R.G.D. 1-36, at 8). The calculation includes the time the child spends 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" (Sirdevan v. Sirdevan, [2009] O.J. No. 3796 (Ont. S.C.J.)).
39 In line with this approach, a custodial parent will be credited with time that a child spends sleeping or at school, except for those hours when the non-custodial parent is actually exercising rights of access or the child is sleeping in the non-custodial parent's home (Cusick v. Squire, [1999] N.J. No. 206 (Nfld. T.D.)). If there is a fixed drop-off time for the access parent to deliver the child to school or daycare and the child returns to the custodial parent at the end of that day, the time during school or daycare is typically credited to the custodial parent (Maultsaid, at para. 20; Barnes v. Carmount, 2011 ONSC 3925, [2011] O.J. No. 3717 (Ont. S.C.J.), at para. 43).

Barnes v Carmount, 2011 ONSC 3925 is a very helpful case, specifically on the issue of schooling time. Barnes alludes to Ferguson v Ferguson:

48 One of the main cases relied upon by the respondent is Ferguson v. Ferguson (2005), 12 R.F.L. (6th) 304 (P.E.I. T.D.), where court specifically dealt with how school time should be credited either to one parent or split between them.

49 The court states at paragraph 37 "there are many facts which could help to determine who is responsible for dealing with the school, and who would be called by the school in the event of an emergency or if anything happened which required the school to contact a parent. These could include: (a) whether one or both parents names are on a list at the school. (In practice, however, I expect most schools would ask, even demand, the names and numbers of both parents.); (b) the relative availability and proximity of the parent during school hours: (c) who enrolls the child; (d) who goes to the parent teacher meetings; (e) who signed the report card; (f) who pays the bill (in the case of day care); (g) who signed the notes to the teacher; (h) who responds to telephone and written messages from the teacher or the school.

Barnes alludes to Torrone v Torrone:

57 In the case of Torrone v. Torrone, [2010] O.J. No. 310 (Ont. S.C.J.), Justice J.E. Ferguson at paragraph 9 states" I am also not swayed by the respondent's submission that Jonathan's in school hours on Thursday should be included in the calculation of the respondent's time spent. In-school time should be credited to the parent who is responsible for the child while he or she is school"

Barnes also alludes to Sirdevan v. Sirdevan, [2009] O.J. No. 379 (Ont. S.C.J.):

61 At paragraph 16 of the Sirdevan case it states, "in this court's view Mr. Sirdevan exercises a right of access to, or has physical custody of the children during the periods of time the children are nominally in his care whether they are in his immediate presence, in care of the nanny he employees, or at school or swimming lessons or any other activity is responsible while he is responsible for their well-being. Every case must be determined on its own facts but, in this instance, any other conclusion would involve an inappropriately rigid interpretation of section 9."

Based off these cases, Barnes concluded that the parties in that case were jointly responsible for the children while at school and therefore the time was “neutral” time not to be attributed to either parent. This case clearly demonstrates that whether parenting time will be attributed to either parent while the children are at school will depend on the facts of the case.

Obvious takeaways? Parenting time really depends on the “care and control” that a parent has over the child. Parenting time is typically spelled out in a court order if the parties go through litigation. However, if the parties specifically argue about things such as school time, generally whether a parent has “care and control” of the child during school hours will be a fact-based analysis. A court may use hours or days in coming to a decision on the threshold issue.

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