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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #11 (permalink)  
Old 11-07-2016, 02:49 PM
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You really need to consider how you expect him to effectively parent, co-parent and be an active equal parent in this time if you are removing him from regular contact and participation in the child's every day life.
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Old 11-07-2016, 02:52 PM
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And when youre considering switch of holidays, consider traditions and how you will prevent them from interfering in time of access. For instance if you have three years in a row that child is with you, kid will not want to give up holiday "traditions" with you to go back to the schedule with dad. By doing the even/odd years method you will have a better chance of kid wanting to follow the schedule in the future. Its not fair to deny a holiday for several years.
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Old 11-07-2016, 02:55 PM
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I thought I am sacrificing my time with the child through Easter, for example. I understand that I am losing my family time with the child but when there are no other windows to return access and only long-weekends left, it might be the option, I would like to give 50/50 but it might not be enough and I will have to offer 2 out of 3 years to father. It is 50/50 now.
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Old 11-07-2016, 03:01 PM
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Blinkandiamgone

What would you suggest with 4 hour drive relocation. Please, don’t suggest to not pursue it. In case I pursue, what would you suggest so father can have active participation. Obviously phone and skype will be unlimited. Physical contact, it is realistic to offer 2 weekends and I tend to offer one weekend I drive and take back the child, the other weekend father comes and stay in hotels for which I pay (and gas as well) and spend a weekend with child in town. Maybe hotels are not very comfy but they can go to indoor playground or do homework in the hotel, in good weather take walks in the parks.

Actually, considering father is flex with job, he could come and pick him up right after school on Friday, not at 9 pm. I think it is not so good for child to be on the road twice a month. To provide 3 out of 4 weekends per month is hard and not very realistic. I am obviously willing to give up most of holidays with child and give them to father.
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Old 11-07-2016, 03:18 PM
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Quote:
Originally Posted by Tatyana K View Post
It is 50/50 now.
What? I'm so confused.

1. He will be successful in reducing CS. You will move to offset.

2. You won't be relocating.. not with the child anyways.
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Old 11-07-2016, 03:21 PM
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sorry I talked about long weekends and meant all long-weekends and Christmas is split 50/50. Father has around 30 % of time overall, I have sole custody. In summer he has two weeks but increasing to 3 weeks in two years.
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Old 11-07-2016, 03:29 PM
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FYI - there are some judges who calculate things out hourly (I have seen cases on CanLii) However, I'd check with your local courthouse/family law centre and see if that is something commonly done in your neck of the woods.
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Old 11-07-2016, 08:02 PM
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Quote:
Originally Posted by arabian View Post
FYI - there are some judges who calculate things out hourly (I have seen cases on CanLii) However, I'd check with your local courthouse/family law centre and see if that is something commonly done in your neck of the woods.


They are supposed to calculate it hourly. That's the correct way.


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Old 11-07-2016, 08:03 PM
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I believe it is ultimately up to the judge as both are acceptable in case law.
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Old 11-07-2016, 08:10 PM
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[17] In Kolada v Kolada, 1999 ABQB 409 (CanLII), my colleague Veit J held that the appropriate way to calculate the percentage of time a child is in the care of each of its parents is to calculate the total number of hours that the child spends in the care of, or in the responsibility of, each parent. She specifically rejected determining the percentage by calculating the number of days. This would lead to an unfair result, she observed, where (as here) a child spend parts of some days with each parent. That unfairness might be addressed by permitting both parents to credit themselves with a whole day where each of them spend part of a day with a child, but this would not give the Court as accurate a picture of time spent in the care or responsibility of each parent. Moreover, it would inevitably present a skewed calculation, since it would result in a total number of days per year greater than 365 or 366. It is, as Veit J concluded (at para 17), “simpler, clearer and more fair to account for the time spent by the children according to the number of hours they are … within a parent’s responsibility.”

[18] Two points flow from this. First, we count hours, not days. Secondly, exercising “a right of access to”, or having “physical custody” of a child, for the purposes of Section 9 of the Guidelines, means having the child in a parent’s care or (where the child is not in either parent’s presence at any given time) having responsibility for the child. (For example, while neither parent would usually be at school or daycare with the child, one of the parents might be responsible for the child if he or she needs parental care during school and daycare hours. I will discuss this further below.)

[19] Justice Veit’s decision in Kolada was described by Johnstone J in Low v Robinson, 2000 ABQB 60 (CanLII) at para 60 as stating “the method of calculation of access time adopted in Alberta”. In that case, she observed that the applicant parent had sought “significantly increased hours of access with little responsibility during their waking hours”. See also Lavoie v Wills, 2000 ABQB 1014 (CanLII) at para 119 (Rooke J, as he then was); and Chase v Chase, 2003 ABQB 1057 at para 15 (Veit J).

[20] I agree with Veit J’s method of calculation, because it is consistent with the purposes of child support. Child support is based on the idea that a child should benefit from both parents’ ability to support him or her in the same way as the child would benefit were the parents still together, in accordance with the parents’ relative abilities to contribute to that support. This is why child support is the child’s entitlement, and not the parent’s. It is designed to benefit the child by assisting the recipient parent in caring for the child, and in undertaking responsibility for the child. It is not designed to assist the recipient parent merely to spend time with the child. Consequently, if a payor parent spends more time with the child without providing care or undertaking responsibility for the child, the child must still look to the recipient parent to provide that care and responsibility. As Bastarache J said for the majority at the Supreme Court of Canada in Contino v Leonelli-Contino, 2005 SCC 63 (CanLII), [2005] 3 SCR 217 at 225 (Contino), “[m]ore time spent with a child may not involve increased spending or significant savings for the other parent.” Inasmuch, however, as the payor parent spends more time actually caring and undertaking responsibility for the child, the child’s needs to be met by the recipient parent are, at least in theory (although some of the recipient parent’s costs may be fixed), correspondingly diminished (along with recipient parent’s need for child support).

[21] A reference point of care and responsibility helps the Court fairly account not only for parenting time with a child, but also for parenting time away from a child. Meaning, the time during which a parent is responsible for a child can include time in which that parent and the child are not in each other’s physical presence. I referred earlier to the example of school and daycare. Specifically, a court considering an adjustment of child support under Section 9 of the Guidelines will want to know who, as between the parents, is responsible for the child during school or day care. If the child is ill or injured while under the supervision of a teacher, a daycare worker or any other third party and needs parental care, which parent will be expected to respond?

[22] Similarly, a focus upon care and responsibility helps the Court fairly account for the quality of time spent by each parent with the child. Is a substantial portion of one parent’s time with the child consumed by holidays and vacations? Or do the parents substantially share the hard, quotidian work (and often drudgery) of preparing meals, cleaning, helping with homework, overseeing piano practice, getting the child to taekwondo or rugby practice, resolving disputes and enforcing expectations? (Dennett v. Dennett (1998), 1998 CanLII 18134 (AB QB), 61 Alta LR (3d) 245 at para. 12(f) (QB, Romaine J.) Section 9, after all, refers to a parent who “exercises a right of access”. That parental right, properly understood, imports parental responsibilities. A parent who “exercises a right of access” therefore demonstrates that he or she is doing so by assuming and discharging those responsibilities.

[23] While not disputing the suitability of focussing upon parental caring and responsibility (as opposed to mere parenting time), the Manitoba Court of Appeal in Mehling v Mehling, 2008 MBCA 66 (CanLII) at para 42 rejected an hourly calculation of time as an instance of a “minute-by-minute” calculation. While it expressly refrained from ruling out a calculation on the basis of hours, it considered that “an assessment of the time that a parent is with, or responsible for the children and their needs, on the basis of days or weeks, or portions thereof, will be a more realistic approach to the analysis than an hourly accounting.”

[24] I find myself in respectful disagreement with the Manitoba Court of Appeal. To reiterate, I accept that the assessment of time should account for the time that a parent is responsible for the children (as Veit J held in Kolada). That reference point, however – of actual care and responsibility, rather than “Dad’s time” and “Mom’s time” – does not preclude an hourly calculation.

[25] Let me offer this example from the parenting arrangement I ordered in respect of FB to show why an hourly calculation – and not, for example, a daily calculation – is more fair. In circumstances where a child is dropped off at school or (as here) at day care by one parent (let’s say “Dad”), and picked up from school or day care by the other parent (“Mom”), a daily calculation might be unfair and unreflective of the allocation of true parental caring and responsibility between the parties. Depending upon the child’s age, Dad may well have made an important contribution in preparing the child for her day, including waking her, ensuring that he or she is appropriately washed and dressed, and preparing breakfast and perhaps lunch. When the child reaches school age, Dad may have also had to help her with last-minute issues like locating homework and seeing to her on-time departure for and arrival at school. Should that time not be recognized in calculating time for the purposes of Section 9? I think it should. Yet, a daily-based calculation in favour of Mom for that day would undervalue Dad’s important parenting time that morning.

[26] It is, again with respect, therefore insufficient to support a daily (or weekly) calculation in opposition to an hourly calculation by saying (as the Manitoba Court of Appeal said in Mehling at para 42) that “an assessment of time that a parent is with, or responsible for the children and their needs … [is] a more realistic approach.” I recognize that there is something unseemly about parties getting out their stopwatches, and it is hard not to conclude that the purpose of child support may be lost upon parents who engage in minute-by-minute calculations. The Court cannot, however, ignore that many successful parenting arrangements entail split days, during which each parent is truly responsible for a child for a part – often an important part – of a single day. This is not to detract from the concern that the calculation should account not merely for time spent, but for time caring and being responsible for a child. Rather, it is to say that this concern is not served by diminishing the significance of either parent’s time spent in the enterprise of truly caring and being responsible for the child.

[27] In other words, the quantitative determination of whether the 40% threshold is met also entails a qualitative evaluation. The Court must look to and calculate the allocation of time spent caring and undertaking responsibility, and not merely at parenting time as ordered by the Court or agreed upon by the parties. That understood, it remains open to the Court to examine each parent’s time spent caring and being responsible for a child on an hourly basis (a point which was conceded in Mehling at para 42). Indeed, it is – for the reasons stated by Veit J in Kolada – fairer to do so. Done this way, the arithmetic calculation that our Court of Appeal has affirmed is required by Section 9 of the Guidelines does not preclude an emphasis on the functions allocated within a shared parenting regime.


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