By Douglas J. Manning, Partner, Certified Specialist in Family Law
Over the past 18 or so years, since the Child Support Guidelines have come into play, many separating parents have struggled with the ramifications of their child support obligations when the child or children live more than 40% of the time with each parent. The Child Support Guidelines, section 9 essentially allows for a determination of the child support resulting in an amount other than the Table amount of child support, IF the children are in the care of each parent more than 40% of the time. This section does not require an amount that is different than the Table amount but allows a court to take into consideration such factors as the increased costs of a shared custody arrangement and the needs and means and other circumstances of each parent in determining an appropriate amount of child support.
Before a court can get to dealing with the amount of support, the children must be in the care of of each parent “not less than 40 per cent of the time over the course of a year”. So much time has been spent by parents attempting to determine the amount of time the children are with each of them. Is the determination based on the number of overnights per year? the hours per year? the minutes per year? or is there some other calculation that is necessary?
Much of the caselaw in this area has been relatively inconsistent – some judges have counted the number of overnights the children are with each parent over the year; others have counted the hours. The Court of Appeal in Froom v Froom indicated that there is no universally accepted method or formula for calculating the 40% threshold. However, in a well reasoned recent decision in L.(L.) v C.(M.) 2013 CarswellOnt 3560, Justice Czutrin carefully reviewed the previous caselaw and came to the conclusion that there is something of a theme developing to the effect that it is the number of hours that the child is in the care of control of the parent; not the number of hours that the child is physically present with the parent that gets counted. Thus it is the parent who is responsible for the child at the relevant time that gets the credit for the hours.
Justice Czutrin relies on an academic article and concludes that the time the child is with a parent at swimming lessons, at day care, at school or with a nanny is time to be credited to that parent so long as it is that parent who is responsible for the child during that relevant period of time.
One important point to be taken from this decision is that one or the other of the parent is going to be responsible for the child at all times. We are not going to take out of the 24 hour day the hours the child is at school and say that neither parent gets credit for this time; one or the other of the parents is going to get credit for the school hours. So if the child is to be with their father alternate weekends from Friday after school until Monday return to school and each Monday from after school until 8:00 p.m. then it is probably the father who will get credit for the school hours on Mondays.
The issue of counting of hours comes up most frequently in high-conflict separations. It is therefore more important in these types of cases that the parenting schedule be set out in considerable detail in the hopes of avoiding a costly debate regarding how much time the child is in the actual care and control of each parent.