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-   -   How is custody time legally calculated? (https://www.ottawadivorce.com/forum/showthread.php?t=20665)

Ange71727 01-10-2017 11:27 AM

How is custody time legally calculated?
 
Looking for information on how the legal system determines exactly what percentages of custody time each parent has. Is it calculated using only overnights? Is there a formula commonly used?


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Janus 01-10-2017 12:51 PM

Answer: However the judge decides. There is no legal method. Crazy inn't?

I've seen it calculated as follows:
1) By overnights
2) By hours
3) By hours and assigning school/daycare hours to the "primary" parent

Overnights is almost certainly the most accurate and fair method. Anyone with kids will tell you that morning routine and bedtime routine are the hardest parts of child rearing.

LovingFather32 01-10-2017 12:55 PM

Janus is correct. Depends on the judge.

Most judges use "hours" now-a-days in my opinion (based on caselaw I've personally read.

For Instance, in: http://www.canlii.org/en/ab/abqb/doc...&resultIndex=1
The judge discussed it as:

Quote:

[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.
But as Janus points out, there are different schools of thought on the matter.

trinton 01-10-2017 01:35 PM

While there are different ways to calculate it, the hourly method is the only acceptable method. If another method is used, you can appeal and likely win so that it is calculated hourly. Many case law supports the hourly method as it is the only method that makes sense. Recent case law support this method.

See my post outlining the case law regarding the hourly method in this thread:

http://www.ottawadivorce.com/forum/f...-access-20488/

Tayken 01-10-2017 02:17 PM

Quote:

Originally Posted by trinton (Post 216021)
While there are different ways to calculate it, the hourly method is the only acceptable method. If another method is used, you can appeal and likely win so that it is calculated hourly. Many case law supports the hourly method as it is the only method that makes sense. Recent case law support this method.

See my post outlining the case law regarding the hourly method in this thread:

http://www.ottawadivorce.com/forum/f...-access-20488/

I think this is the case that Triton is speaking to:

Desjardins v. Bouey, 2013 ABQB 714 (CanLII)
Date: 2013-12-09
Docket: FL03 37107
Citation: Desjardins v. Bouey, 2013 ABQB 714 (CanLII), http://canlii.ca/t/g2bk0

A better review of the authorities is found here:

Quote:

[40] The onus is on the parent who is relying on section 9 of the Guidelines to establish that the 40% threshold has been met (Meloche v. Kales (1997), 35 R.F.L. (4th) 297 (Ont. Gen. Div.); Huntley v. Huntley, 2009 BCSC 1020 (CanLII), 2009 BCSC 1020 (S.C.); L.L. v. M.C., Supra.) The analysis should assume that the custodial parent starts with 100% of the time (Froom v. Froom, [2004] O.J. No. 5361 (S.C.J.), aff’d 2005 CarswellOnt 545 (C.A.)). As the court noted in L.L. v. M.C., Supra., the 40% threshold is the minimum period of time for triggering the operation of section 9, and therefore the court should not round up or round down the figure reached.

[41] In Contino, the Supreme Court of Canada was not required to address the issue of how the 40% threshold referred to in section 9 of the Guidelines should be calculated. In Froom, Supra., the Ontario Court of Appeal held that there is no universally accepted method of deciding the 40% time period, and that rigid calculations of time are not necessarily appropriate. The court endorsed the comments of the trial judge in that case that the court should focus on determining whether physical custody is truly shared by the parents. Cases decided since Froom, Supra., have highlighted that the method chosen for calculating the 40% threshold is often critical to the outcome of the support analysis in shared parenting situations. In L.L. v. M.C., Supra., the court concluded that in light of the importance of this issue, it is desirable to be as precise as possible when carrying out the calculation. It noted that the overwhelming weight of authority in Ontario and the other provinces supports calculating the 40% threshold on an hourly basis. When calculating time in hours, the 40% threshold is met if the parent has the child in their care for 3504 hours over the course of the year (Claxton v. Jones, [1999] B.C.J. No. 306 (Prov. Ct.); L.L. v. M.C., Supra., at para. 37).

[42] The relevant period for the calculation of time under section 9 is the amount of time that the child is in the general care and control of the parent, and not the time that the parent is physically present with the child (L.L. v. M.C., Supra., at para 38). The time attributed to a parent includes all time during which the parent is the one who is responsible for their well-being (Sirdevan v. Sirdevan, [2009] O.J. No. 3796 (S.C.J.)). In Maultsaid v. Blair, 2009 BCCA 102 (CanLII), 2009 BCCA 102 (C.A.), the British Columbia Court of Appeal provided guidance on how the issue of time calculation should be addressed in cases where the parent exercises mid-week overnight access. The court concluded that school time in these situations should not be credited to the parent relying on section 9 unless the parent has the child both before and after school on a particular day.

Source: Scott v Chenier, 2015 ONSC 7866 (CanLII), par. 41, http://canlii.ca/t/gmm1q#par41
Good Luck!
Tayken

Ange71727 01-10-2017 04:34 PM

Quote:

Originally Posted by Tayken (Post 216024)
I think this is the case that Triton is speaking to:



Desjardins v. Bouey, 2013 ABQB 714 (CanLII)

Date:2013-12-09

Docket:FL03 37107

Citation:Desjardins v. Bouey, 2013 ABQB 714 (CanLII), http://canlii.ca/t/g2bk0



A better review of the authorities is found here:







Good Luck!

Tayken



Thank you - great info!! I have been spending hours going through all the sites/cases/info you've been posting. So glad I came here - becoming better informed of everything little by little.


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Janus 01-11-2017 09:23 AM

Quote:

The court concluded that school time in these situations should not be credited to the parent relying on section 9 unless the parent has the child both before and after school on a particular day.
In all my time reading case law, that one sentence is the one that I have found to be the most egregiously unfair. I remember when I first read that one, it was a punch to the stomach.

I am a 50% parent. Our separation agreement is almost completely symmetrical. If we apply the quoted paragraph to my situation, then I am a NCP because there are many days when I only have before or only have after. Crazy.

Rioe 01-11-2017 10:42 AM

Quote:

Originally Posted by Janus (Post 216069)
Quote:

The court concluded that school time in these situations should not be credited to the parent relying on section 9 unless the parent has the child both before and after school on a particular day.
In all my time reading case law, that one sentence is the one that I have found to be the most egregiously unfair. I remember when I first read that one, it was a punch to the stomach.

I am a 50% parent. Our separation agreement is almost completely symmetrical. If we apply the quoted paragraph to my situation, then I am a NCP because there are many days when I only have before or only have after. Crazy.

I completely agree. School time should be credited to both parents. If there's an issue at the school, say the child falls ill, the school is going to run down the contact list until they get in touch with someone. They won't care if it's the parent who had the child that morning, or the parent who is supposed to have the child that evening, they just care that they get in touch with the parent who can come get the child soonest. That has a lot more to do with the nature of the parent's workday schedule than it does with where the child was that morning or will be that afternoon.

Janus 01-11-2017 12:01 PM

Overnights also probably more accurately reflect the apportionment of actual costs. Having to respond to the occasional illness during the school day doesn't affect costs that much. My kids miss about 0-2 days per year each on average, which isn't much. Even if I took an unpaid day of work to care for them, averaging out that cost over the year really minimizes that actual losses incurred by responding to the situation.

Most people don't even have to take an unpaid day. Almost every job I have ever held allowed me to make up the time or to otherwise find a way to get paid regardless for the occasional absence.

trinton 01-11-2017 12:04 PM

Quote:

Originally Posted by Rioe (Post 216075)
I completely agree. School time should be credited to both parents. If there's an issue at the school, say the child falls ill, the school is going to run down the contact list until they get in touch with someone. They won't care if it's the parent who had the child that morning, or the parent who is supposed to have the child that evening, they just care that they get in touch with the parent who can come get the child soonest. That has a lot more to do with the nature of the parent's workday schedule than it does with where the child was that morning or will be that afternoon.

It's not hard to get 40% of the time in a given year even without the school time. You can get 42% access by picking up your kid from school on Friday and having him/her until Monday morning drop off to school every other weekend, and every Wednesday from school until Thursday morning. You will need to equally share the holidays. Found this out coincidentally.

from the same case law mentioned above:


[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.


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