Question Re: 40% threshold calculation

[FamilyBlah]

Some facts to consider:

1. There has never been a court order regarding custody.

2. There has never been an order regarding Primary Residency although at an uncontested hearing my ex's lawyer snuck in a request for my ex to "continue" as the primary and the Judge included it in his endorsement.

3. The children's school acknowledges a Joint Custody arrangement as does Child Family services, etc.

4. My ex has created the schedule and despite my protests limits the access between me and my children.


Based on the 9 week schedule (9 weeks?!? I know ) that my ex and her lawyer claim we have been following here is the hourly breakdown:

9 weeks = 1512 hours

physical custody to my ex = 722 hours = 47.8%
physical custody to me = 415 hours = 27.4%
physical custody to school or daycare = 375 hours = 24.8%


Am I correct in my calculations that I have "right of access OR physical custody" 52.2% (27.4 + 24.8) of the time?

[FaithandMorals]

What kind of court appearance happened to ask the judge to 'continue primary residence' on the endorsement.
Have you only been phsyically seperate for 9 weeks?
The back story is unclear to me.

[FamilyBlah]

I failed to provide an Answer. I did not know it was a requirement. Back then (Oct 2009) I had no clue. Not like that now.

My ex filed a motion of contempt against me claiming I didn't file a financial statement in accordance with Oct 2009 court Order. However, I did file a financial statement in accordance with the order.

They had one uncontested hearing where they asked for Joint Custody with her as the primary. No custody or access order was made.

They had another uncontested hearing where they asked for the same thing. I found out about this one and showed up. It was at this uncontested hearing that i was ordered to pay half my ex's costs in order to be permitted to file an answer. It was also at this hearing that my ex's lawyer asked that primary residency continue.

[FaithandMorals]

I think what you are asking is how does one calculate the percentage of time with each parent.
If so, from what I understand according to government websites there is no consistency in judge's views.
Some judge's take the view they calculate the time - daycare/school and other's view daycare/school as part of the time as there are always 168 hours in a week.
Therefore, in your calculations in your first post IF they judge were to view daycare as 50/50 then your time would be 40% and your ex's time would be circa 60%.
Either way that is the way I would argue it if I were you.
I hope more seasoned members here will give their view as well.
Good luck

[FamilyBlah]

Originally Posted by FaithandMorals

I think what you are asking is how does one calculate the percentage of time with each parent.
If so, from what I understand according to government websites there is no consistency in judge's views.
Some judge's take the view they calculate the time - daycare/school and other's view daycare/school as part of the time as there are always 168 hours in a week.
Therefore, in your calculations in your first post IF they judge were to view daycare as 50/50 then your time would be 40% and your ex's time would be circa 60%.
Either way that is the way I would argue it if I were you.
I hope more seasoned members here will give their view as well.
Good luck

Did you add my percentage and 1/2 the joint custody (when they're in school) percentage to get 40%?

[FamilyBlah]

Also of note is the fact that this is a schedule my ex has created and I have been requesting 50/50 for over two years now.

[dinkyface]

What is your concern ...
- who has decision-making power? (joint means both of you)
- where does the kid go to school (i.e. whose address is used?) if joint, it goes to primary residence/parent
- how is child support calculated? (this depends on time split)

Typically the time split is done simply by the number of overnights. Hour counting is less common.

You either have 'right of access' or you don't (it's not a % thing). You have to mess up big time (e.g. consistently endanger your kid) to lose your 'right of access' - though some have to fight hard against their ex for that right.

The meaning of 'physical custody' is less clear. It can refer to the time split (i.e. physical=location) as opposed to legal custody (i.e. decision-making power). But, joint physical custody can also mean equality in both time and decision-making. See here for discussion on terminology: Child Custody Arrangements: Their Characteristics and Outcomes (2004-FCY-3E)

Some more context would be useful.

[FamilyBlah]

We both have decision-making power.

There has been no designation by the courts as to which residence is the primary.



I am trying to determine if the children would be considered to be with me at least 40% of the time. It is my understanding that any time spent in school or daycare would be considered time with both parents as we are both responsible for them when they are in school or daycare.

[Mess]

Hour counting is very uncommon and it would have to a justified circumstance. For example if the child was sleeping at one parent's home each night but staying every day with the other parent (instead of daycare.) In this case obviously the child is not 100% with one parent.

In most cases it is a calculation by overnights. The argument about school/daycare would be, if the child was sick, or if there was a PD or some other reason to be home, which parent would the child stay with? If the child was injured at school, which parent would go to pick them up?

In our case, if school is closed or one of our children were sick, the parent's home where they were sleeping the night before would be one they stay with that day. It makes little sense to move a sick child to the other parent at 7am. When we drew up our schedule to attach to our separation agreement we worded it that way, that the children switch after school or at 4pm on weekends/holidays.

Most school age children pick up every illness floating around. You should be able to demonstrate through your own work attendence records, compared to the child's school attendence, that you are caring for the child when they are sick. Similarly you should be able to show that you are attending dental and medical checkups regularly with the child.

If you want to show that the child is in your care during particular hours you need to be able show details like these. Simply submitting a calculation of hours won't get you anywhere.

[FamilyBlah]

I am unemployed. I have attended numerous school activities (skating, swimming, bowling, etc) over the last year. I have also picked up the children from school due to illness or behaviour issues. The school has called both me and my ex. Sometimes when they have called my ex she has been unable to leave work and I have picked up the children. I attend all parent/teacher meetings, speech assessment meetings, medical appointments, etc.

My ex has created the access schedule in an effort to keep my access under 40%. However, there has been no order naming her as the custodial parent or the primary residency. She claims this based on her manipulation of the schedule.

I am trying to determine if I have them 40% anyway in spite of her manipulation.

In the case of Law v Law [2011] O.J. No. 1737, Justice D. Gordon at paragraph 67 stated "calculation of time with each parent is not a rigid exercise.* Parental responsibility, not minutes, is the primary consideration.* Time sleeping and time at school cannot be ignored.


I have requested a letter from the school stating that they act under the presumption of a Joint Custody arrangement unless there is a court order stating otherwise. There is NOT a court order stating otherwise.