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  • 40+% access and CS payments

    I have access to my kids once a week (4PM to 9PM) and every other weekend (4PM/Fri to 9PM/Sun). I have never missed a day or weekend of access with my kids every since the divorce 5 years ago. I have always spent a large part of my access with my kids to review their school assignments and homework and have always maintained an active role in their academic work. This has helped both my kids to maintain good marks in school.

    I am considering increasing my access to my kids to include twice a week and every other weekend in an effort to help them with what is becoming an increased academic work load for both of them as I am finding that my current access no longer provides me the time to adequately help them with their school assignments now that they are in middle school. Their mother never has nor is qualified to help me academically.

    My question is: Would twice a week (4PM to 9PM) and every other weekend (4PM/Fri to 9PM/Sun) constitute access over 40% of the time for me? If so, how are CS payments recalculated?

    Thanks in advance.

  • #2
    I think, not 100% sure, that you would not meet the 40% cut off rule.
    The other side may argue that the two evenings a week equate to only ONE full day plus the alternating week ends is roughly 37%, if you have extended summer and Christmas etc, you may meet or exceed the 40% but you'd have to convince a judge with clear math nothing complicated or it will be tossed as a waste of time and unnecessary.


    Not trying to argue for the ex, only trying to offer an outside view.

    Comment


    • #3
      Originally posted by Stargate View Post
      ...

      My question is: Would twice a week (4PM to 9PM) and every other weekend (4PM/Fri to 9PM/Sun) constitute access over 40% of the time for me? If so, how are CS payments recalculated?

      Thanks in advance.
      The set off method is common, which is your CS table amount minus her CS table amount. That is what you pay her (assuming you make more, otherwise she pays you).

      Note that this method is unfair in the case of equal costs to the one who makes more as it (mathematically) assumes it costs DOUBLE to raise the kids in two homes compared to one, which is of course not true. I have posted the math about this in another post - search on my posts in the last month and you can see the math regarding the double cost assumed by the set off method.

      I don't know how they calculate the time, but you would still only have them on average 1 overnight per week, which to me does not sound like equal costs to each parent and as such CS would remain simply your table amount paid to her.
      Last edited by billm; 09-17-2009, 10:04 AM.

      Comment


      • #4
        Thanks for the replies. Just wanted to add that I also have them 3 full weeks in the summer as well as 1 full week at Christmas in addition to the access I mentioned above. So does THAT give me the 40%??

        Comment


        • #5
          Originally posted by Stargate View Post
          Thanks for the replies. Just wanted to add that I also have them 3 full weeks in the summer as well as 1 full week at Christmas in addition to the access I mentioned above. So does THAT give me the 40%??
          If you assume that the two evenings per week @ the equivalent of 1 full day(52 days/year) plus the 3 days every other week end (78 days/year) plus the extended vacation days (28 days/year) averages about 43% of the year with you. Your position would be to clearly demonstrate this fact to a judge AND get him/her to agree to any changes in CS as a direct result. This would have to include increased financial costs on your part to have them for a greater amount of time. Since the assumption with the FL system is that increased care = increased yearly costs. Sometimes the increased access doesn't automatically mean increased costs since the cost is high anyway to maintaining a decent home for quality access with their own room clothing/belongings etc. So having them there 5 days/week is no more then having them there 2-3 days/week. The rent doesn't change, the utilities don't change etc, (you get the picture). Too bad the courts don't see it this way. Just because they are not there 24/7 does not mean one does not have the same base costs. The change is in food and day care or the like right?

          Comment


          • #6
            Originally posted by FL_Needs_To_Change View Post
            If you assume that the two evenings per week @ the equivalent of 1 full day(52 days/year) plus the 3 days every other week end (78 days/year) plus the extended vacation days (28 days/year) averages about 43% of the year with you. Your position would be to clearly demonstrate this fact to a judge AND get him/her to agree to any changes in CS as a direct result. This would have to include increased financial costs on your part to have them for a greater amount of time. Since the assumption with the FL system is that increased care = increased yearly costs. Sometimes the increased access doesn't automatically mean increased costs since the cost is high anyway to maintaining a decent home for quality access with their own room clothing/belongings etc. So having them there 5 days/week is no more then having them there 2-3 days/week. The rent doesn't change, the utilities don't change etc, (you get the picture). Too bad the courts don't see it this way. Just because they are not there 24/7 does not mean one does not have the same base costs. The change is in food and day care or the like right?
            Thanks FL! Does the CS also not change automatically as a result of access in excess of 40%? In other words why would I need to convince a judge of this seeing that is it part of Family Law?

            tia!

            Comment


            • #7
              Welcome to family law. Yes FL has provision for it, but unless your ex is willing to say yes, and just go along without a court order perhaps just a written agreement between you then you will need a court order and in getting that order the onus will be on you to show the 40% threshold has been met and ask that the 40% threshold calculations be applied to your situation which is the off set amount previously discussed. IE determine each gross income determine the CS amount for the # of children relative to province then subtract the two from each other the parent with the higher income pays the other parent to offset CS amount. This link will help explain the 40% threshold and associated shared parenting issues etc.
              http://www.divorcemate.com/library/SharedParenting.pdf

              Comment


              • #8
                Originally posted by FL_Needs_To_Change View Post
                Welcome to family law. Yes FL has provision for it, but unless your ex is willing to say yes, and just go along without a court order perhaps just a written agreement between you then you will need a court order and in getting that order the onus will be on you to show the 40% threshold has been met and ask that the 40% threshold calculations be applied to your situation which is the off set amount previously discussed. IE determine each gross income determine the CS amount for the # of children relative to province then subtract the two from each other the parent with the higher income pays the other parent to offset CS amount. This link will help explain the 40% threshold and associated shared parenting issues etc.
                http://www.divorcemate.com/library/SharedParenting.pdf

                Thanks again FL! I will definitely need to file a new Motion with the Court as my ex is the "ex-from-Hell" and will resist any changes to my access to the kids especially if she is faced with having to have her CS eliminated in the process (she makes close to $70,000/yr which is more than I do but I will not ask the Court to have her pay me the difference between incomes). Perhaps the Judge will see this more favorably and grant me the additional access.

                What do you think??

                Comment


                • #9
                  Originally posted by FL_Needs_To_Change View Post
                  If you assume that the two evenings per week @ the equivalent of 1 full day(52 days/year) ...
                  I believe your assumption here is wrong right off the bat.

                  If Dad has the kids two evenings during the week days, then Mom has them for 3. If Dad only adds up to 1 day, then Mom only adds up to 1.5.

                  The ratio is 2:3 for weekdays, and 3:4 overall including weekends (alternate weekends, averaged over 2 weeks). When the kids are at school, it shouldn't be assumed that this defaults to the primary custodial parent. Presumably if the kids are with the other parent for Tuesday and Wednesday, then if there is an emergency the "secondary" parent should be considered responsible. If the child is ill, the child should stay at the "secondary" parent's home. So the "two evenings" during the week are of necessity at least 48 hours.

                  This is the formula that my ex and use, and it hasn't been questioned by either of our lawyers or Revenue Canada. We haven't been through the court process yet but I don't see any problems with this.

                  If the deal between the parents is that in case of illness, holiday, PD day, etc the kids default to the primary parent's home, then it would be arguable that the evenings only count for half, if someone wanted to be a jerk about it. But if the secondary parent is willing to step up and be responsible for sick days etc, then there should be no question.

                  edit: And now I reread the original post and the kids are only over at the secondary house from 4 to 9pm, so my apologies FL_Needs_To_Change you were correct.

                  Comment


                  • #10
                    What are my chances in Court of getting the judge to agree to an extra day per week of access knowing that my ex will (almost for sure) oppose this?

                    Comment


                    • #11
                      There are no known true stats or percentages for these kinds of things.
                      If you feel that you have put together a good argument that the additional time in a greater benefit to the children in the long run (remember common sense does not factor into FL) then a judge may grant the extra access.
                      First rule of lawyers is if it's not on paper it doesn't exist or didn't happen.

                      I would not try to push the 40% threshold right away with the request for increased access, I would seek the extra access in the form of a court order then resubmit for the 40% after a status quo has been established and you can further demonstrate that the extra granted access has proven to be beneficial to the children. This can be done via their report cards if your increased attention to their studies increases their grades and also increases their happiness level etc.

                      It's a step by step process that you can win if you are willing to put in the time and effort.

                      Comment


                      • #12
                        .........

                        I would not try to push the 40% threshold right away with the request for increased access, I would seek the extra access in the form of a court order then resubmit for the 40% after a status quo has been established....
                        I was thinking the same thing else it may be perceived that I am attempting to evade CS which I am not.


                        .........

                        and you can further demonstrate that the extra granted access has proven to be beneficial to the children. This can be done via their report cards if your increased attention to their studies increases their grades and also increases their happiness level etc.
                        How would I prove that I am responsible for their good marks?

                        Comment


                        • #13
                          Although I've not been through court, my understanding is that the two key things are a) overnights and b) who gets called by the school if a child is sick and needs to come home.

                          I would almost guarantee that evenings alone would not even factor in to the custody time split for percentage calculations.

                          Regarding the CS recalculation I would imagine that the important thing to do would be to clearly demonstrate why reallocating the support money is in the best interests of the child. I don't think helping the kids with homework would constitute that, unfortunately as I think the court would simply expect you to do your best in this manner.

                          Overnights require that you have bedrooms and living space for the kids, a swing set, that they need to change their clothes at your house (so you need to buy them clothes), that you need rubber boots, raincoats, etc. Evenings simply mean that they come and leave in the same duds, on the same day.

                          I'm not trying to rain on your parade, trust me, I'm a very involved Dad and was astounded as I learned the biases and attitudes in family law.

                          If you are serious about changing things, and if you are able. Start with a plan to have custody of your kids a full week at a time. How would you make that work, what changes would you need to make at work, at home, and how could you convince the court if necessary that would be best for the kids.

                          David
                          ModernFather.com

                          Comment

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