View Single Post
  #5  
Old 01-10-2017, 01:17 PM
Tayken's Avatar
Tayken Tayken is offline
Senior Member
 
Join Date: May 2011
Posts: 6,997
Tayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant futureTayken has a brilliant future
Default

Quote:
Originally Posted by trinton View Post
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
Reply With Quote