How is Shared Custody Calculated? Daily? Hourly?

How is Shared Custody Calculated? Daily? Hourly?

Under the federal Child Support Guidelines, there are certain rules that apply specifically to calculating child support in cases where a “shared custody” arrangement is in place. The Guidelines define this as being those situations where a parent has access or physical custody of a child for “not less than 40 percent of the time over the course of the year”. (And note that the fact that parent with access newly hits that 40 percent mark does not mean that he or she automatically pays less child support; it means only that a court is required to take certain specified factors into account in setting support amounts in such cases).

But how is that 40 percent threshold properly determined? By counting days? Hours? Minutes?

A recent case called L. (L.) v. C. (M.) adds clarity to this precise question. The court described the problem it was being asked to consider this way:

The mother and father have both provided calendars that apply their interpretation of the access and custody order. The father, who calculates his time in days (overnights), concludes that his access time is over 40 per cent. The mother, who calculates in hours, concludes that the father’s access falls well below 40 per cent. Both parties are very aware that this 40 per cent threshold is significant. I have now calculated based on their assertions and my conclusions and clarification.

The court then turned to reviewing the process by which the 40 percent custody is to be evaluated. For one thing, it noted that the Guidelines are not clear on precisely how the calculation is to be realized, and there is no court-endorsed universal method. On the other hand, it is clear that the threshold is strict, and that a court is not entitled to “round up” in cases that are on the border.

Next, the court observed that if a “days”-based approach is used, then a parent with access must have the child in his or her care for 146 days per year. If the calculation is based on “hours”, then the 40 percent threshold lies at 3504 hours per year. The method used can make a big difference. The court wrote:

With the changes in support that can stem from proceeding under s. 9 [the Guideline’s “shared parenting” provision] and the strict setting of the 40 per cent threshold, this calculation can be extremely significant. At times, calculating in days versus hours makes just the difference that moves the access parent into a situation where they exercise 40 per cent access …. For this reason, applying the appropriate method of calculation is crucial.
The answer as to which approach to take, according to the court, may have to be determined case-by-case. The Guidelines do advocate for a flexible and robust consideration of the parents’ individual circumstances; in some (though not all) circumstances, units smaller than days may be the fairest method of determining whether the 40 percent threshold has been reached. This can include an hourly accounting of time in the right circumstances.

(And as an aside, it is important to note that the calculation is based on the time the child is in the care and control of the parent, including time spent with nannies, or at school or day care, and time that the child spends sleeping at the parent’s house, etc. It does not count that the parent is merely physically present with the child).

Here, the court used the hourly approach and determined that the child was in the mother’s custody 67.4 percent of the time, and was with the father 32.6 percent of the time. The “shared parenting” threshold of 40 percent was not met in this case.

For the full text of the decision, see:

L. (L.) v. C. (M.), 2013 ONSC 1801 http://canlii.ca/t/fwslt

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Top 10 Familyllb’s Blogs of 2012

Top 10 Familyllb’s Blogs of 2012

Well it has been another busy year for us as our blog has been viewed over 150, 000 times and we have received over 500 comments.  Thank you to everyone for your continued comments and support.

So in keeping with the year in review theme, here are our Top 10 Blog posting for 2012.

Number 10: New Proof of Parentage Requirements When Travelling with Children

This Blog examined why it’s important for parents to know that effective December 1, 2011, there are new proof-of-parentage requires for applications relating to travel by a child. These requirements are aimed at protecting Canadian children against child abduction, and designed to further enhance the security of the Canadian passport system.

New “proof of parentage” documentation required.

After December 1, 2011, for standard passport applications respecting children under the age of 16, the change involves a new requirement:  every application must be accompanied by “proof of parentage” documentation.

Number 9: Top Five Lottery Cases in Family Law

Lottery wins are a once-in-the-lifetime stroke of good fortune.   (At the least, they certainly happen less frequently than anyone hopes).  But in the case of married or common-law couples who buy the winning ticket, the joy of having a monetary windfall can quickly become tainted if they later separate or divorce, because issues often arises as to who gets the money, or how it is to be split.

So, in the unlikely event that these become relevant to our readers, this Blog reviewed the top five interesting lottery cases from across Canada.

Number 8: Ontario’s Bill 133 & Regulation for Pension Division to Commence January 2012

This Blog reviewed Ontario’s Attorney General Chris Bentley report that starting January 1, 2012, the pension division and valuation provisions in the Family Statute Law Amendment Act, 2009 will come into force. The changes are designed to make the family justice system more affordable, faster, simpler and less confrontational

Number 7: Top 5 Web Resources for Kids of Divorcing Parents

One of the most regrettable and usually unavoidable aspects of separation and divorce is the impact it can have on the children of the marriage. Even the most amicable separation-and-divorce scenarios are rife with challenges for all the parties, not the least of which are endured by the children who are the most emotionally ill-equipped to handle them. Parents may have difficulty knowing how best to support and accommodate their children’s needs during the difficult transitional period that inevitably accompanies the change in family lifestyle.

This Blog provided a list of the “Top 5” websites aimed at helping children through this phase.

Number 6: Wife Plans to Sue Ontario Family Responsibility Office for Husband’s Suicide

In the past few years, the government of Ontario implemented legislative amendments allowing drivers’ cars to be impounded and / or their licenses to be suspended in cases where they have failed to pay child support. This Blog took a look at how, according to a London, Ontario woman, this impact has directly caused the suicide of her common-law husband.

Number 5: 5 Ways to Make Sure Your Separation Agreement is Valid

Separation agreements can be a useful means by which separating spouses can take first steps toward unwinding their financial and family-related affairs by way of a mutual agreement. This Blog provided aa list of the top five ways to ensure that a separation agreement is valid and enforceable in Ontario.

Number 4: Top 5 Things to Know About the Canada Child Tax Benefit

 Soon it will be time to start thinking about individual income taxes, and all of the various components that go into providing the federal government with a financial “snapshot” for the past year.

For separated or divorcing spouses with children, one of those components is the Canada Child Tax Benefit (CCTB).

The Canada Revenue Agency (CRA) administers the CCTB, which is a monthly, tax-free benefit received on behalf of a child under the age of 18. Its purpose is to assist families with child-raising costs, and its value depends on family income, among other things.

This Blog examined 5 things to keep in mind about the CCTB.

Number 3: Top 10 Things to Know About Children and Passports

In this Blog we examined the relatively recent changes to children and the need to travel with passports.

Since June 1, 2009 all Canadians, including children travelling to the U.S., must present a document that is compliant with the Western Hemisphere Travel Initiative (WHTI). For entry into the U.S., this includes a Canadian passport or a NEXUS card when available.

Number 2: Top 5 Questions About Adultery and Divorce in Ontario

It seems that celebrity gossip tabloids will never have a shortage of topics to cover, as long as there are stories about extramarital affairs by successful, high-profile celebrities. Most recently, it has been alleged that Arnold Schwartzenegger fathered a child with the housekeeper employed in the home he shared with his wife of 25 years; prior to that, Tiger Woods has admitted to having sexual trysts with at least 14 women outside of his relatively short marriage.

In this blog we examine the role of adultery and Divorce in Ontario.

Number 1: 10 Things You Should Know About Child Support

This continues to be a very popular post and is evidence of the ongoing need that parents have to for information about child support.  This blog examines how all dependent children have a legal right to be financially supported by their parents. When parents live together with their children, they support the children together. Parents who do not live together often have an arrangement in which a child lives most of the time with one parent. That parent is said to have custody of the child. This arrangement can be written in a separation agreement or court order (sometimes called legal custody), or may occur without a written agreement or court order (sometimes called “de facto” custody). Either way, the parent with custody has the main responsibility for the day-to-day care of the child and has most of the ordinary expenses of raising the child. The other parent should help with those expenses by paying money to the parent with custody. This is called child support.

There you have it.  Our Top 10 Blogs for 2012.  Thank you  again to everyone who have visited our Blog and all your continued comments and support.

The Canada Child Tax Benefit — Which Parent Gets To Claim It?

The Canada Child Tax Benefit — Which Parent Gets To Claim It?

The Canada Child Tax Benefit (CCTB), which is administered by the Canada Revenue Agency (CRA), is a monthly government payment made to parents in respect of any children under the age of 18. This tax-free benefit is intended to assist families with child-rearing costs.

In the traditional scenario involving an intact family, there is a legislative presumption that it is the child’s mother who primarily fulfills the responsibility for primary care; as such the mother is usually eligible for the CCTB, with some exceptions. The monthly CCTB cannot be prorated between the parents.

However, in cases where the parents are separated or divorced (and are not living together), the question of which of them is entitled to use the CCTB can factor into the allocation of custody and child support, and can arise in the context of the negotiation of these issues between the parties.

In a general sense, this determination of which of two separated or divorced parent is eligible for the CCTB will be governed firstly by the relevant legislative rules enacted under the federal Income Tax Act and its regulations. (And note that in this context the parents may be formally married, or else may common law spouses or merely cohabiting. Same-sex spouses also qualify). Among other things, these rules involve consideration each parent’s income, as well as the child’s living arrangements.

Specifically, the parent with whom the child is living – and who is “primarily responsible” for the child’s “care and upbringing” – will be entitled to the CCTB. The question of whether a parent meets this threshold is governed by provisions in the Income Tax Act regulations, and includes consideration of: whether the parent:

• supervises the child’s daily activities and needs;

• maintains a secure environment in which the child lives;

• arranges, and transports the child to, medical care at regular intervals;

• arranges, participates in, and transports the child to educational, recreational, athletic or similar activities

• attends to the needs of the child when he or she is ill;

• attends to the child’s hygienic needs on a regular basis; and

• generally provides guidance and companionship to the child.

Consideration will also be given to whether there is a court order in existence that concerns the child and which is valid in the jurisdiction in which the child lives.
Some additional points to know:

• There is no requirement that the child lives exactly 50% of the time with a parent, to be considered “residing with” the parent.

• In situations involving shared custody, the CRA may allocate CCTB eligibility equally to each parent for six months of each year.

• In cases where there has been a breakdown of the relationship and the parents have either divorced or have been separated for more than 90 days, the eligibility by one or the other parent for CCTB will be determined after a review by the

CRA in cases where the child spends considerable time with each parent. The CRA’s review will consider which of the parents is primarily responsible for the child’s care and upbringing, including consideration of any relevant court orders.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.