View Single Post
  #3  
Old 01-10-2017, 11:55 AM
LovingFather32's Avatar
LovingFather32 LovingFather32 is offline
Senior Member
 
Join Date: Apr 2014
Location: Ottawa
Posts: 4,520
LovingFather32 is an unknown quantity at this point
Default

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.
Reply With Quote