Announcement

Collapse
No announcement yet.

40% rule

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • 40% rule

    Hey all,

    So I have shared custody of my seven year old son, was never married to his mother and did not live with her when he was born, have always been present and a big part of his life, and have always struggled for more time with him. We were separated before his birth, but always maintained a friendly cooperation of parenting, and would spend time together nearly daily for his first five years. When he was old enough for school, she declared that she was moving towns, I was going to have him every second weekend, and it was not up for discussion or mediation. I took her to court and we agreed outside of court to mediate about it. A year ago, after a year and half of failed mediation and imminent trial, with my time having been cut back to every second weekend, she finally agreed to ten days a month with me. That is, ten days out of four weeks. We split holidays, which add up to roughly three months, or 90 days, per year. The way I do the math, that puts me at 142 days, or 39 point something percent.

    I've recently written to her requesting that we move to a half time scenario, week on, week off, that it is simpler, more balanced, and fewer transitions for our son (we currently go every Thursday and every second weekend from Thursday after school through Monday morning). She flatly refused, without explanation (as is her style), I told her I would be talking to a mediator (as per our agreement), and she said "you have to do what you have to do".

    The way I see it, is that she refuses to go to half time because she would compromise her child support payments, which she receives every month, table amount of $372/month. From my reading, it seems like this is a very common sticking point for time sharing issues, because a day or two can mean the difference of several hundred dollars per month. My understanding is that the standard for 40/60% or more is offsetting table amounts for child support, and our incomes are fairly similar, but I would likely still pay her some amount. She pays all his extra costs (school supplies, dental - though she may have a plan, activities, etc.) but I still have regular daily costs as well as clothing, recreation costs, toys and equipment. I would rather just split his extra costs and deal with his daily costs ourselves. Essentially how I see it is that I am covering most of his costs for her, as well as paying for my part. It's really not about the money for me, but it seems to me that it is affecting how she wants to share the time. She refuses to discuss either the child support or the time sharing, though we do have a agreement to seek mediation, which I am hoping she will follow through with. I really don't want to go to court, but it is the only way she will negotiate with me, if she sees that I am serious about it. She stonewalled me at three other mediation attempts, so I don't have much faith in that process. I've thought about settling with things as they are if she agrees to pay for post-secondary education, I don't really know how this is usually handled??

    Any advice?? Thanks in advance!!

  • #2
    If this goes to court, you would have to establish a material change of circumstance that is framed around the best interests of your child. Based on what you have written, I'm not sure you would be successful. Since there is likely no incentive for Mom to agree to this change, chances are you will be heading to court.
    Do you attend doctor's/dentist's appointments, recreational activities, stay home when the children are sick, etc., etc. in a way that would show you are an equally (shared)involved parent, and not just the non-custodial parent?

    There are others on this forum who say arguing for the maximum contact principle in lieu of a material change of circumstance would suffice. Keep in mind Mom would argue that you are trying to change your access for financial reasons, which if true, will be frowned upon. I would avoid discussing child support with her in such a way that it could be used as evidence against you to help her prove this point. She could also easily argue that a week about arrangement is inappropriate for a 7 year old, being very different and potentially disruptive from the current status quo.

    Read this very similar thread: http://www.ottawadivorce.com/forum/f...-access-18013/

    Comment


    • #3
      Here is a case where there was no material change of circumstance and it did go to court.

      Wickens vs Wickens

      This is a good primer, neither parent got what they wanted but gives you some insight into what a judge looks for when it comes to best interests of a child and what is required from either party to prove their point.

      I think you have a 50/50 chance.
      1. Focus on the week on week off, you argument you need to frame everything in best interest of the child and why it should be that way.

      You want to be equal parenting and give the child you as role model.

      You already have 39% so it's not going to require a big change or disrupts the child, on the contrary it allows both parents to play a role in this kid's life.

      If she wants to argue down the road of child support, I wouldn't even be afraid to go down there. I would throw it back it is because she's using the kid for money then if that's the case. going from 39% to 50% is not a big jump. And she's blocking it because she wants child support. He is already in the kids' life and not an every other weekend dad.

      Remember, child support is secondary to best interests of child.

      Evidence, get your photo journals, calendars, etc whatever you can find that you actively participate in the child's life. Think of a future plan for him, etc.

      Her only argument at that point is he doesn't want pay child support and primary care giver.
      That's also been squished too

      Cavanaugh v. Balkaron, 2008 ABQB 151 (CanLII)

      That's not thinking about child's best interest at that point.

      Get yourself a decent lawyer and fight it out in court.

      As well, I don't want to be a Debbie downer here but you need to fight this sooner than later, as the passage of times goes by, it simply states that you are happy with the arrangement and as each year passes, your chances of getting shared parenting go down and down.

      Remember, the judge doesn't see or know about your every day grumbles for the past year etc...he only sees what is presented in court.

      Comment


      • #4
        [3] In the circumstances here, even if the aging of the child were not a material change of circumstance, being eminently foreseeable, there is a material change of circumstance because both the divorce judgment, and the minutes of settlement on which the divorce judgment is based, anticipated that the parties would continue to negotiate parenting time. Moreover, the respondent mother does not oppose the father’s application on the basis that there has been no material change of circumstance
        This case of "no change in circumstances" was exceptional.

        In Quebec the passage of time can result in a modification of access though.

        _________________

        Regarding the 40% rule - I think you should consider the following.
        I believe their is a new judicial trend to award 39% or endorse 39% custody when there is a big income gap because it gets money transferred as much as possible.

        There is a famous case called contelli where the final conclusions were that even in shared custody OFFSET is not guaranteed (for Ontaio) which is basically "code" for maximize child support.

        Furthermore, not only will child support be reduced but the child tax benefits etc... will now be SPLIT between both parents.

        __________________

        I wouldn't OPEN the topic of 39 or 40%.

        If they open the topic then my answer would be that it is established in Contelli that 40% is a legal fiction and has no real bearing on reality.

        By attempting to keep you just below 40% the mother will go to no ends to never give you the child in order to ensure she keeps her 40% (provide evidence) - this clearly isn't in the interests of the child as parents should be flexible.

        I would also argue that weekly-weekly switches are a "proven solution" that divides up the "quality weekend time" and the "working week time" between the parents so the children can benefit optimally from how each parent manages those periods of time.

        Also as the children grow older and they have outing with friends etc... the weekends with dad become a competition for that which can cause resentment lack of access etc....

        _________________

        At the end though, show a change of circumstances that was unforseeen....

        Comment


        • #5
          Good knowledge...didn't know that one. You are not a troll as you say you are...lol

          Originally posted by Links17 View Post
          This case of "no change in circumstances" was exceptional.

          In Quebec the passage of time can result in a modification of access though.

          _________________

          Regarding the 40% rule - I think you should consider the following.
          I believe their is a new judicial trend to award 39% or endorse 39% custody when there is a big income gap because it gets money transferred as much as possible.

          There is a famous case called contelli where the final conclusions were that even in shared custody OFFSET is not guaranteed (for Ontaio) which is basically "code" for maximize child support.

          Furthermore, not only will child support be reduced but the child tax benefits etc... will now be SPLIT between both parents.

          __________________

          I wouldn't OPEN the topic of 39 or 40%.

          If they open the topic then my answer would be that it is established in Contelli that 40% is a legal fiction and has no real bearing on reality.

          By attempting to keep you just below 40% the mother will go to no ends to never give you the child in order to ensure she keeps her 40% (provide evidence) - this clearly isn't in the interests of the child as parents should be flexible.

          I would also argue that weekly-weekly switches are a "proven solution" that divides up the "quality weekend time" and the "working week time" between the parents so the children can benefit optimally from how each parent manages those periods of time.

          Also as the children grow older and they have outing with friends etc... the weekends with dad become a competition for that which can cause resentment lack of access etc....

          _________________

          At the end though, show a change of circumstances that was unforseeen....

          Comment


          • #6
            Thanks for the replies.

            I agree with you First Timer, that if she argues I am just trying to get out of CS payments, that it would hopefully work against her by showing that money is her primary reason for wanting to minimize my time, rather than best interest of the child. Further to this is that, since our falling out, she has never once asked me to look after our son during her parenting time, and chooses to regularly book after school care and babysitters instead, even when I was down to every second weekend.

            To be quite honest, I would survive with the time sharing where it's at, but I really don't like her to have it both ways, to have me sharing a large part of the costs and responsibilities as well as paying her full support. I would settle for the current regime, if it is so important to her, if we could adjust the CS payments fairly. I guess though that makes it sound like it is about the money for me then, but it seems that this is a common story around the 40% rule. Would a judge order reduced payments without adjusting time sharing? I don't think there is a large income gap between us, but we do each have new partners and newborn children that might play in to the factors.

            Another bit, I haven't quite figured out, is that I have my son on holidays and NI days that attach to my weekends, which may or may not bump up my percentage to 40% on any given year, depending on where the days land. If I could prove 40%, could I just take that to a judge for a change in the CS regime? What I am hoping is that by taking the payments out of the equation that she would then accept the half time regime.

            We also share summer holidays in 2 week blocks, so he is completely fine being with me for longer periods, so hopefully the one week blocks wouldn't be seen as too disruptive or out of the ordinary. I do attend his activities, but am pretty much out of the loop with regards to medical and dental, as she doesn't inform or invite me, just tells me after the fact. Also, I am wondering if relations with siblings factors in for a judge, that he should have a right to equal time with each of his siblings in our respective families, to allow for those relationships to be more balanced?

            Thanks again, cheers!

            Comment


            • #7
              Again, I would ask for the shared parenting in the best interest of the child.

              Going down to the judge and asking for shared parenting and reduction in child support because you meet the 40% threshold shows you are not working for the best interest of the child which is his psychical, emotional and social development.

              And yes the equal time with the siblings is important. You want the shared parenting because it allows child to foster and develop bonds with his siblings equally.

              Comment


              • #8
                Money issues aside, you need to focus on your ability and want to continue to coparent and this shared parenting request is simply you increasing the access.

                Comment


                • #9
                  Originally posted by bcgooddad View Post
                  Thanks for the replies.

                  I agree with you First Timer, that if she argues I am just trying to get out of CS payments, that it would hopefully work against her by showing that money is her primary reason for wanting to minimize my time, rather than best interest of the child. Further to this is that, since our falling out, she has never once asked me to look after our son during her parenting time, and chooses to regularly book after school care and babysitters instead, even when I was down to every second weekend.
                  If you are able to take care of your child during these times, send her a letter stating that it is in the child's best interests to be spending this time with a parent (you) and that you would like her to verify with you first before booking alternative care. If you are paying your portion of after school care, state that this will help reduce costs. If you happen to do this verbally, make sure you follow it up in writing.

                  Originally posted by bcgooddad View Post
                  To be quite honest, I would survive with the time sharing where it's at, but I really don't like her to have it both ways, to have me sharing a large part of the costs and responsibilities as well as paying her full support. I would settle for the current regime, if it is so important to her, if we could adjust the CS payments fairly. I guess though that makes it sound like it is about the money for me then, but it seems that this is a common story around the 40% rule. Would a judge order reduced payments without adjusting time sharing? I don't think there is a large income gap between us, but we do each have new partners and newborn children that might play in to the factors.
                  Asking for a week about arrangement does not necessarily sound like it is about the money, but judges have seen it all. You have an uphill battle. The onus will be on showing that you are an equally caring and capable parent. It is unlikely a judge will reduce your payments, being on the cusp of 40%. You need to focus on increasing your access without even mentioning the child support or even going so far as saying you would like to keep CS the same. If you are successful in increasing your access, then 6+ months later, you could then request a change in CS, claiming you are having trouble making ends meet.

                  Originally posted by bcgooddad View Post
                  Another bit, I haven't quite figured out, is that I have my son on holidays and NI days that attach to my weekends, which may or may not bump up my percentage to 40% on any given year, depending on where the days land. If I could prove 40%, could I just take that to a judge for a change in the CS regime? What I am hoping is that by taking the payments out of the equation that she would then accept the half time regime.
                  If the 40% varies from year to year, this will be unfavorable for the purposes of changing CS. Again concentrate on increasing your access. Avoid this reverse order thinking, i.e. trying to change CS first, and then access second.
                  Originally posted by bcgooddad View Post
                  We also share summer holidays in 2 week blocks, so he is completely fine being with me for longer periods, so hopefully the one week blocks wouldn't be seen as too disruptive or out of the ordinary. I do attend his activities, but am pretty much out of the loop with regards to medical and dental, as she doesn't inform or invite me, just tells me after the fact.
                  The two week blocks in the summer, and attendance at activities look good. Hopefully you have some evidence to back this up.
                  Change the dental and medical arrangements, because what she is doing is not in the spirit of joint custody. You should inform her that you would like this changed, either by saying you would like to know well in advance (dentist appointment are probably booked at least 4 months in advance) of appointments so that you can attend and also meet the doctor and dentist. You could suggest that both parents attend these appointments, or if she does not like this idea, that you alternate the appointments. Additionally, any future booking of appointments, and subsequent changes in times, must be done at a mutually agreeable time. Put this in writing.
                  Originally posted by bcgooddad View Post
                  Also, I am wondering if relations with siblings factors in for a judge, that he should have a right to equal time with each of his siblings in our respective families, to allow for those relationships to be more balanced?

                  Thanks again, cheers!

                  Comment


                  • #10
                    Originally posted by Links17 View Post
                    This case of "no change in circumstances" was exceptional.

                    it is established in Contelli that 40% is a legal fiction and has no real bearing on reality.
                    Hi, can someone please post a canlii link to this 'Contelli' case which discusses the 40% legal time restrain.

                    thank you

                    Comment


                    • #11
                      CanLII - 2005 SCC 63 (CanLII)

                      Comment


                      • #12
                        Offer full support for 40+ percent of access. If it's money that is her issue then just pay it. I don't know how much she makes but given you only pay 372 a month I don't think offset would be a huge departure from what your already paying.

                        Comment


                        • #13
                          Originally posted by Serene View Post
                          Offer full support for 40+ percent of access. If it's money that is her issue then just pay it. I don't know how much she makes but given you only pay 372 a month I don't think offset would be a huge departure from what your already paying.
                          This is crazy please don't do this. Don't accept to pay to see your kids.

                          Comment


                          • #14
                            Originally posted by Mamma View Post
                            Hi, can someone please post a canlii link to this 'Contelli' case which discusses the 40% legal time restrain.

                            thank you
                            I think you mean Contino v. Leonelli-Contino (google it - should be easy to find). My understanding of this case is that when the child is residing with each parent for at least 40% of the time factors other than the table amounts may be taken into consideration when setting child support. In other words, there is a precedent for not going with strict offset in a shared parenting situation. There are three other factors which may be taken into consideration and they are laid out in S9 of the FCSG.

                            In practice, I think it is unusual for a shared parenting situation to not use the offset method, but Contino says that it is not out of the question.

                            I'm writing this from memory, so I could be completely wrong.

                            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