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  • Examples of 40% access

    Hi there,

    Just wondering what different versions of 40% access looks like, taking into consideration summer break / christmas / etc

    Thanks

  • #2
    I have almost never seen shared custody been awarded where an unequal amount of vacation time was part of it. Its almost always 40%+ based on the week-week arrangement.......

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    • #3
      40 % applies to a year according to the law. I've seen cases where it states this excplicitly. And 39% is not 40 %.....

      Comment


      • #4
        I don't think there are any specific examples you can use simply, but in my case I pick up d12 every second week Wednesday afternoon from school a drop her off Monday morning at school. The spring break one year with me, the other year with mom, summer and winter break shared ~evenly. This adds up around 40%.
        Based on the case law you need to count hours, which makes it fun.

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        • #5
          Typically 40% is calculated by overnights, so in a 2 week rotational schedule if the kidlet is with you Tue/Thur overnight plus every other weekend (Fri, Sat night) and goes to other parents Sun night that is 6 out of 14 nights, or 42.8%. If the kidlet stays with you on your every other Sun night it's 50/50.

          I don't think most judges count hours of the day, you would have to have a real strong case to consider hours. Remember when calculating the kid only have 365 days a year to share between parents.

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          • #6
            Okay, sorry to hijack this thread then what would you consider this.

            We have a 4 week rotation. If I was to count overnights, ex gets

            11/28 days = 0.3928571428571429
            17/28 days = 0.6071428571428571 (me)

            is this considered meeting the 40% threshold?


            Originally posted by Canadaguy View Post
            Typically 40% is calculated by overnights, so in a 2 week rotational schedule if the kidlet is with you Tue/Thur overnight plus every other weekend (Fri, Sat night) and goes to other parents Sun night that is 6 out of 14 nights, or 42.8%. If the kidlet stays with you on your every other Sun night it's 50/50.

            I don't think most judges count hours of the day, you would have to have a real strong case to consider hours. Remember when calculating the kid only have 365 days a year to share between parents.

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            • #7
              Originally posted by FirstTimer View Post
              Okay, sorry to hijack this thread then what would you consider this.

              We have a 4 week rotation. If I was to count overnights, ex gets

              11/28 days = 0.3928571428571429
              17/28 days = 0.6071428571428571 (me)

              is this considered meeting the 40% threshold?
              It looks like 39% and 61% to me, no matter how you do the math. Sorry, it looks like you are just barely under the threshold.

              It might be worthwhile to calculate based on the past year, not your standard standard rotation. Because you're so close to threshold, two or three additional nights here or there could make a big difference.

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              • #8
                In Québec it is always by hours

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                • #9
                  In Alberta, there is a growing trend to count hours as well.

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                  • #10
                    Interesting case from Alberta about counting hours

                    https://www.canlii.org/en/ab/abqb/do...&resultIndex=1

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                    • #11
                      It is hours even in Ontario. Look up the case law. And 39.9999999% is still less than 40%.

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                      • #12
                        Arabian, you are pretty awesome.

                        I actually used this case as the blueprint for my affidavit and evidence.

                        The arguments the judge wrote against, I made sure I covered. The key takeaways were if you are going to prove that you are an equal partner, you need to show quantitatively, and qualitatively.

                        1. Quantitative evidence
                        a. Provide a journal of every day you have with the child.
                        b. Provide a timelined photo journal of every time you have with the child.
                        c. Provide a summary with total time breakdowns with total time period.
                        d. Provide samples of text where other person doesn't want child and tells you to take said child
                        e. Provide a nice calendar view for judge to see easily.

                        2. Qualitative (were your interactions significant and meaningful to the child)
                        a. Provide a list of all the places you've take him (zoo, parks, sports, swimming, special holidays etc with exact dates)
                        b. Provide reciepts for the above if you have them
                        c. Provide the list of appointments from your kid's doctor that you took since your awesome ex didn't want.
                        d. Provide the timelined photojournal that judge can correlate with those dates.
                        e. Provide a journal of his development including milestones etc

                        3. Write an affidavit that summarizes it in a way the judge can easily reference each piece of evidence. Tag your evidence with stickys so he can quickly look at each statement and go to evidence quickly.

                        My ex's evidence was an affidavit that said nope, I only gave dad the kid sometimes..and I do everything. She even had the balls to write on her counter, that so what he took kid to all doctor's appointments, I was the one that identified the child as being sick so really it was me that should have credit.

                        Facts are facts and evidence supports that and the better off you will be. It's alot of painstaking work, collecting it, putting it together, summarizing it etc.

                        It pays off.

                        Arabian - you are wise

                        Originally posted by arabian View Post
                        Interesting case from Alberta about counting hours

                        https://www.canlii.org/en/ab/abqb/do...&resultIndex=1
                        Last edited by FirstTimer; 08-11-2015, 09:56 AM.

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                        • #13
                          I'm not wise - the judge who penned that case law I cited is, Justice Russell Brown - he was recently appointed (July 2015) to the Supreme Court of Canada.

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                          • #14
                            It is hours even in Ontario. Look up the case law. And 39.9999999% is still less than 40%.
                            This is one of the examples of the conflict the legal system instills in divorces. .00001% more time with your child increases are reduces a huge expense. As long as this exists anytime I hear the legal system spew some BS about wanting to reduce conflict is manifest hypocrisy. The children are used by mothers and judges as financial management tools to transfer wealth for fathers to mothers (mostly).

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                            • #15
                              I built my case evidence around hours. Well, I had both an hourly breakdown as well as nights. To me the hourly is more significant as nights can mean anything.

                              Another thing too, is communicate drop off times in text. Example, if you are going to drop off kid, then say okay, i'll be there at 5:00 etc. This worked perfectly for me as she had absolutely no way of contesting that no, I had that time, you didn't etc. as I had every single drop off exchange in text over 2 years.

                              Alberta used to be all about nights, but the trend now is judges are all about counting hours.

                              However, I cannot stress enough that you picture and journal document every waking moment with the child. The end of the day, what you are fighting for is having the courts recognize that you are just as equally important relationship and role in the upbringing of your child as the other parent.

                              It's sad that it becomes a game of getting money.
                              Last edited by FirstTimer; 08-11-2015, 12:50 PM.

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