40/60?? How is this calculated

[Sinkingfast]

How do you measure the percentage of time a child spends with you? What is counted? Sleepovers, a 24 hour day?? I am so confused.
For the past 6 years I have had my son every other weekend starting on Friday after school until Monday morning when I take him back to school.
Plus one day during the week again returning him to school the next morning.
Summer, Chrsitmas, Spring Break are usually split fairly equally.
The other kicker is that I drive him back and forth and the distance is over 50km each way.
Up until now I have been paying FULL child support. Would I have fallen into the 40/60 split custody arrangement?
Can anyone shed some light??

[HammerDad]

How do you measure the percentage of time a child spends with you? What is counted? Sleepovers, a 24 hour day?? I am so confused.
For the past 6 years I have had my son every other weekend starting on Friday after school until Monday morning when I take him back to school.
Plus one day during the week again returning him to school the next morning.
Summer, Chrsitmas, Spring Break are usually split fairly equally.
The other kicker is that I drive him back and forth and the distance is over 50km each way.
Up until now I have been paying FULL child support. Would I have fallen into the 40/60 split custody arrangement?
Can anyone shed some light??

Judges normally determine it off of overnights. I have heard the CRA determines it by hours. But in general, overnights is the most common method of determining parenting time.

If, over the course of a year and for multiple years, you've had the child for more than 40% of the year, and you can provide evidence to prove your claim, you may be able to get a judge to alter the parenting arrangement. But note that judges do have discretion. Just because you are able to prove you have the kids more than 40% of the time, doesn't mean a judge will 100% move the c/s regime to offset.

[dad2bandm]

Judges normally determine it off of overnights...

...But note that judges do have discretion. Just because you are able to prove you have the kids more than 40% of the time, doesn't mean a judge will 100% move the c/s regime to offset.

HammerDad is right.

FYI, I made this post to a similar question, earlier this month...

"OntarioFamilyLawBlog.com, (who I stole this from for expediency) sums it up:

Some Judges count only where the child puts their head down to sleep at night, some count the hours spent with each parent, some include school time or time spent at extracurricular activities, some just count the actual time spent at that parent’s home.

Many cases are disputed very far in our Court system because of this ambiguity. The Ontario Court of Appeal released a decision in 2005 called Froom v. Froom. This was an appeal from a Trial Judge’s decision to a higher Court.

The father had won at the Trial level because the Judge found he met the 40% threshold based on the number of days his children resided with him. On the appeal though, it was acknowledged that if the Trial Judge had counted the hours, and not days spent with the Father, he would not have met the 40% (and so would have paid Table support).

But the Court of Appeal upheld the Trial Judge’s decision – they said that there is no universally accepted method for determining the 40%. They said the Trial Judge’s method (counting days instead of hours) was consistent with what many Judges do – try to avoid rigid calculations and instead look at the bigger picture.

[shellshocked22]

Just confirming my understanding is the same as above, there is no "black and white" definition of defining time at one parents although in general it seems to be "overnight".

So, if you have the child every other weekend for Fri, Sat and Sun night that would be 3 nites x 26 weekends = 78. Plus one day each week for 52. 78 + 52 = 130 days. 130 divided by 365 = 35.6%.

The "typical" guy gets what you have - EOW and once a week. Gee, what "coincidence" that it comes in just under 40%. I strongly suspect that's where they came up with 40% as a magic number since they know most father's will have just short of that.

It also strikes me personally as insane they don't define "time" in the legislation. Using that logic, maybe robbing a bank isn't so much theft as "borrowing" money lol...... Again, no doubt the real reason its undefined is to give judges discretion to screw over fathers in case comes close to the magic 40% only to have the "rules changed" at the last minute by a judge.

While you should always double check with a lawyer, it looks like you're screwed my friend with respect to a shot of offset CS.

[dinkyface]

For 12 weeks (march break, xmas, summer), you have 50% -> 42 days.
For the remaining 40 weeks you have 2.5/7 -> 100 days.
And if a long weekend during school (stat hol or PD day) falls on your weekend, you get an extra day? In our school board calendar there are 6 PD days plus 6 stat hols. On average half would fall on your weekends, so that averages to an extra 6 days/yr.

That's 148 days, which is 40.7% of 52 weeks.

Technically you could go for offset, but as you have read already, it is far from a sure thing.

How did it come about that you are 50 kms from the school? If she moved and you made it clear you did not consent, and you were not the one to move away, then possibly you could claim your access costs are high relative to your income, and attempt to have CS reduced to partially compensate. Your gas costs alone are about $100-$200/month.

[Sinkingfast]

Thank you all for the help....its crazy that there are no consistent guidelines. Just an FYI dinkyface....I am the "she" and the one who moved! I made a decision years ago which I felt was best for the kids and left the family home for my ex. He wore me down financially that I could barely get by. CS was offset for 5 years in return for my equity in our home.
My gas costs are actually about 500 a month,....weekends still include driving for sporting and school events.
Now that our agreement has ended he is claiming that he has had no support from me and has now filed for retro!

[HammerDad]

It sucks, but if you moved, you should be the one to bear the brunt of the costs associated with your decision.

[Sinkingfast]

Yup. Thats the way it is and has been.

[Mother]

HammerDad is right.

FYI, I made this post to a similar question, earlier this month...

"OntarioFamilyLawBlog.com, (who I stole this from for expediency) sums it up:

Just wanted to give you a link to this blog: Do I Have Shared Custody? Counting Hours... : Ontario Family Law Blog

[Sinkingfast]

So basically, lay out a detailed chart of all scenario's?
IE: November 30 days
Sleepovers (12)
Days (18)
Hours (233.5)
In a 30 day month 40% of the total hours would be 288hr. (my math isnt great, correct me if Im wrong) and 12 days would equal 40%.....
You could do this for each month to get the average....
and present all the calculations to the judge and let him or her decide.

[HammerDad]

I would simply set it out in overnights. No need to get fancy.

[Sinkingfast]

You are probably right though in stating "no need to get fancy". Its just very difficult not to say "ya but" (so here it is)......counting only the overnights really doesnt seem accurate to me. If you have the child for an overnight then late into the evening the next day.....why wouldnt that count as two days?
I am now getting a very clear understanding of how very difficult this is to calculate which in turn has helped me decide the best way to proceed.
At the end of the day, we each have to do what we feel is best. This site has been an awesome place to see things from all angles. Thanks HammerDad!

[Mess]

If you have the child for an overnight then late into the evening the next day.....why wouldnt that count as two days?

Because it is only one day.

For example, I pick up my child after school on Tuesday. I keep him overnight. The following day he is in school. His mother picks him up after school on Wednesay.

According to your logic, this is two days, because I have him Tuesday and Wednesday.

The trouble with this logic. first of all, it is only a 24 hour period at most. Secondly, the mother also has him on Wednesday, so Wednesday would be counted twice.

Now let's suppose I keep him "late into the night" on Wednesday, but he still sleeps at his mother's. Is this two days, or one?

If we count hours, this is only, roughly, 28 hours instead of 24. Hardly enough to justify my being counted for two days.

Why is this? Because who is responsible for the child while at school? Does the child cease to have a parent? Does one parent take over during this time?

In the above example, the mother may take the child at 8pm - any later would not be in the child's best interest and would require a further explanation. She has the child overnight and drops him off at school. SHE should technically have custody of the child during THIS school day, because if the child is sick, she would be the one caring for him during that day.

In some cases a judge would rule that one parent would have custody and responsibility during all school days, regardless of who had the child overnight. There should be reasons for this, such as, this one parent is available if the child is sick or is injured at school, but the other parent is not. This type of ruling should be the exception, when exceptional circumstances are factually true.

[MS Mom]

If you're right on the fine line of 40%, leave it alone.

My ex went for decreased child support because according to our agreement he had her 40% of the time. But, as I reminded him over and over, he never bore 40% of the costs. All daycare, transport to and from school for our child was provided free by my dad. He benefited immensely in other areas at the time, but he pushed and eventually lost.

If you're that far away, he's the go-to parent by default. So, he may be parenting on your time by picking up a sick kid from school on "your day".

[Mess]

If you're right on the fine line of 40%, leave it alone.

My ex went for decreased child support because according to our agreement he had her 40% of the time. But, as I reminded him over and over, he never bore 40% of the costs. All daycare, transport to and from school for our child was provided free by my dad. He benefited immensely in other areas at the time, but he pushed and eventually lost.

If you're that far away, he's the go-to parent by default. So, he may be parenting on your time by picking up a sick kid from school on "your day".

Section 9 (a) is what suggests the set-off.

Section 9 (b) and (c) address (possible) increased costs of shared parenting, and relative budgets of each household.

A judge has to consider all three. We cannot expect to just automatically get the setoff because we are at 40%.

The more certain way to adjust support levels is first of all, BE PAYING FOR AT LEAST 40% OF THE CHILD'S NEEDS. If you aren't, start.