Announcement

Collapse
No announcement yet.

Shared Custody (60/40) by Overnights or Hours?

Collapse
This topic is closed.
X
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • Shared Custody (60/40) by Overnights or Hours?

    I was married for 7 years and we separated around October 2010 and after making some initial arrangements I moved out of the matrimonial home on January 1, 2011. My ex makes 60K per year, and myself 20K but I opted initially to forgo having the ex pay child support as a peace offering and to keep stress levels low, even though it does cause me some stress. I have since up'd my income to about 30K per year. The ex also sold the matrimonial home, with my permission and a mediated agreement, and still owes me the proceeds. More on that a little further down.
    My ex and I agreed that I'd have the kids (2 & 4 year old) from Sunday at noon until Wednesday at which point they were dropped off at daycare/school and that started the day I moved out - except for the first two months where we were little more flexible to ease the transition for the kids. This arrangement has been fine, except that my ex believes that I don't meet the threshold for shared custody (i.e. I don't meet the 40% threshold, even though I think I do) and can arbitrarily decided when I can see the kids - ie. change pickup and drop off times. I have been pretty firm in sticking to the status quo and there has been no change yet, but there is a lot of pressure from the ex to get the times changed. This has just started to happen.

    Our mediator has agreed with me, that 3 nights is shared. My ex has started counting hours and thinks that when I drop the kids off at school / daycare it automatically becomes her time. Also, we, as a family, would visit my parents twice a month on Sunday evenings and now my ex has retroactively decided that the time at my parents is "shared time", again inching the hours closer to less than 40%. Also, anytime we make arrangements for work (i.e. I had to travel twice last year and dropped of the kids on the Tuesday night, so now the ex is counting those nights, even though I've repaid the favour at least three times).

    One of the issues is that because the ex isn't paying child support, we agreed that when we visited my parents we'd just meet there (travel time), which now seems to count for her time. The original goal was to save me a bit of money on transportation costs as I live about 25 minutes from the ex and it would require me to back track.

    Obviously this sucks because I wanted these Sunday's as time where my ex and I could spend with the kids and the kids could enjoy having both parents in a comfortable environment. But now I can't risk the ex convincing a judge that based on nitpicking of the hours, they have full custody so now it is just me and the kids visiting.

    Now as I said earlier I haven't collected child support, but with the ex developing a plan it looks like there will be an attempt to get retro-active child support from me. The problem is that the ex went on a spending spree after we separated and has basically used up all the money (new house, new car, new furniture, TV, iPhone, etc.). Also, in our mediation agreement there was some ambiguous phrases that made my ex believe that I'd be paying child support. Not really true, as from the start I believed that I had shared custody and the ex would be paying. Additionally, I gave my ex the $100 childcare tax credit to help with daycare costs (2yr old goes on Wed/Thu/Fri and stays home with me Mon/Tues). Yes, I'm the lower income earner, but I reasoned that $100 per month is a small price to pay for peace and quiet as well as avoiding lawyers. Not so I guess.....

    So here's my question: do judges typically count hours to determine custody or can they look at the big picture (i.e. I have 3 nights, get my son ready for school 3 days per week, share my family, no child support to pay for daycare, etc.)? Does 3 nights truly count as shared?

    Additionally, I'm thinking that it might be a good idea if I had the kids every other Saturday night (starting at 5:30PM) (basically 4 night / 3 night split) but the ex doesn't want to budge on time as that would ensure we have shared custody. How hard would it be to get a judge to agree to the alternating Saturday nights?

    I think a lot of this is from "friends" giving the ex uneducated advice causing a decent separation to go to hell. But it could also be the more one gives the more the other takes.

  • #2
    Couting hours is rare, and you are right in that you ex's hour counting method is unfair anyway.

    You have the kids 3 nights of 7 which is 42%, and you want to add every other Saturday - you want 50/50 and that is in the best interests of all involved.

    Your ex owes you retro CS according to your schedule. Your mediated agreement - what did you agree to regarding access and support?

    I don't know what you agreed to, but the best is to have a clear precise wording that you are equal parents and have equal time with the kids, and that offset CS is paid every year based on the previous years income. Anything else will lead to trouble.

    Not that court is fun, but if you went there, you would win 50/50 or at least status quo (42%), and the ex would have to pay you CS - no agreement can stop CS from what I have learned here. Your ex is not on solid ground.

    Comment


    • #3
      What if you have been doing things as shared custody for over two years while everything is sorted out through lawyer/court, but paying more support than the fair off-set amount. Does that mean you have a good case for "over payment" when all is settled, or do you have to eat that loss because you voluntarily paid more than you should have?

      Comment


      • #4
        I am not sure, but your ex themselves opened up the issue by seeking retro CS.

        So she can seek retro CS - they have admitted that is valid, and you can too. My ex is also seeking some retro CS stating that my income was not accurate.

        I don't know if it is valid as there was full disclosure and we both thought we were using the right numbers at the time. Given that there is shared custody, forcing one parent to pay retro CS, which will not help the kids as that time has passed, but may hurt the kids in that the retro paying parent may not have enough money to support kids and pay the retro.

        Comment


        • #5
          Thanks Billm. Even though 50/50 is fair, and best for the kids, my ex would disagree in many different and interesting ways. As for our agreement, we never formalized it as we knew a lot of change would be happening (son starting school, ex moving to a new home, me deciding whether to stay in my rented house, etc.) so we verbally agreed to honour the agreement until things settled down a bit. Part of the reason was that I didn't have any money for a lawyer and it seemed like a waste since we'd need to redo the agreement in 6 months anyway. And it would have been a waste because everything was going well until November. That's when everything started falling apart.

          When I did the calculations for CS based on the table amounts, kids expenses being factored in, etc. it comes out to about $250-$300 per month for the first year being paid to me. My income is rapidly increasing so I figured if I toughed it out for the first year it would help the post seperation stress.

          The problem I'm having right now is getting my ex to discuss the modification of the agreement. Our original agreement even states that we'd need to modify it when our son goes to school and for the past month she's steadfastly refused to talk to me about it or go back to mediation. That means I might have to go to court, which I really don't want to do. Part of the reason is that my ex has cPTSD and has anxiety and depression. Going to court isn't going to help those conditions, especially if the judge comes down hard on her, and in reality it will affect the kids. But I can't always be limp noodle.

          And I agree on the retro CS that it is more likely to hurt the kids than benefit them. I've even offered my ex a free ride on the 2011 CS.

          Comment


          • #6
            I had a 4th mediation session in 20 months with my ex yesterday. Our agreements last about 5 months and then she insists on changing some things, which is fine as life evolves.

            Our current schedule is Sun noon to Wednesday. My ex is insisting that Wed means 9AM, parts of the agreement (holiday's, summer, etc.) say later in the day. She gave me an ultimatum today that it is either 9AM or we go to court and she'll ask for sole custody. We have two years of status quo, so I'm not really worried, except that she's been documenting every hour for the past two years, seriously.

            As stated in my first post, she is counting hours and her goal is to try to get my weekly hours with the kids below 40% to claim sole custody and get the full child support amount.

            On the Sun noon to Wed at 5PM (when she picks the kids up after school/work) I have 77 hours (46%), if she gets 9AM on Wed that means 41% if we count by hours. Then she'll attempt to knock off more hours depending on travel, etc. (I only travel 3 or 4 times per year)

            The mediator agrees that when she picks up the kids, that's when her time starts. If the kids are sick on Wednesday, I'm not waking them up to deliver them to her so she can take a sick day from work.

            Since the first post on this thread, has anyone encounterd extreme hour counting? How does that go over in court?

            Comment


            • #7
              Okay, I think I've answered my own question, with the help of another post on the forum. Here's a case that talks about counting hours: CanLII - 2006 CanLII 5878 (ON SC)

              Specifically this part:

              "The court should try to avoid fine calculations of the amount of time spent by the children with each parent; the determination should be whether physical custody is truly shared by the parents: Borutski v. Jabbour (2000), 102 A.C.W.S. (3d) 1123, [2000] O.J. No. 5173, 2000 Cars*well*Ont 5088 (Ont. S.C.). A “slavish accounting of small units of time” discourages a beneficial increase in a child’s time with an access parent. The whole parental regime must be considered"

              I feel better.

              Comment


              • #8
                Originally posted by minefield View Post
                This arrangement has been fine, except that my ex believes that I don't meet the threshold for shared custody (i.e. I don't meet the 40% threshold
                Don't confuse the 60/40 access threshold with shared custody. Shared custody is shared custody, as in you both have equal input in decision making processes.

                Comment


                • #9
                  We have joint custody (equal input into how the kids are raised) and as the mediator stated "a shared parenting plan" that falls under the S.9 offset calculation for child support.

                  Comment


                  • #10
                    Originally posted by firhill View Post
                    Don't confuse the 60/40 access threshold with shared custody. Shared custody is shared custody, as in you both have equal input in decision making processes.
                    Totally wrong. "Shared Custody" is defined by the Child Support Guidelines, which are incorporated into the provincial Family Law Act, as each parent having the children between 40 and 60%.
                    Shared custody
                    <!-- TRANSIT - HYPERLINK --><!-- .droit de la famille (Loi sur le) - Règl. de l'Ont. 391/97. -->9. Where a parent or spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account,
                    (a) the amounts set out in the applicable tables for each of the parents or spouses;
                    (b) the increased costs of shared custody arrangements; and
                    (c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought. O. Reg. 391/97, s. 9.
                    This is also the term used in CRA regulations. It is defined in legislation, that is what it means, there is no question.

                    Equal input in decision making is "joint custody." This term is not used in the Ontario Family Law Act, but it is used constantly in case law, and is very strictly defined. Here is a clear description of this is made in the Nova Scotia case Doyle v. MacNutt, just one of hundreds of examples...
                    The concept of joint custody has evolved since Zwicker and Baker. It is now accepted that while one parent may have physical control of a child on a daily basis the other parent can play an important role in major or longer terms decisions which affect the child.Section 18(4) affords parent equal status and that status should only be forfeited if it is shown to be in the best interest of the child. The parties in this case each had joint custodial rights pursuant to the Family Maintenance Act. That right was not something which must be formally requested in a court application, nor is it a right which should be lost unless it is shown to be in the best interest of the child.

                    Comment


                    • #11
                      Originally posted by Mess View Post
                      Totally wrong.

                      Equal input in decision making is "joint custody."
                      Thanks for the correction...I had the word shared stuck in my head for some strange reason.

                      I meant joint custody.

                      Comment

                      Our Divorce Forums
                      Forums dedicated to helping people all across Canada get through the separation and divorce process, with discussions about legal issues, parenting issues, financial issues and more.
                      Working...
                      X