Can someone explain the 40% parenting time calculation for child support?

I

iona6656

New member
Okay- many of you know I'm a lawyer- but I'm a municipal lawyer. I'm just basically teaching myself family law right now without having to pay my lawyer for that advice.

I've informed myself about Federal Child Support Guidelines. Read through it, etc.

My ex recently told me he doesn't want 50/50 parenting anymore- he's just seeking EOW and Wednesday nights. I told him that's totally do-able [provided he completes his counselling and continues therapy] and in the matter of getting things settled- we can even do a yearly meeting with a parenting coach to assess how our daughter is doing on that schedule, etc etc (I'm open to it increasing).

Then, I asked him about what he thinks about starting to pay the table amount of child support? This is when he said "Well, if I have her every other weekend from Friday afternoon to Monday morning and Wednesday nights- I think that's over 40% and I don't have to pay, right?" News to me. I think it will depend on holidays etc...


But is that the general rule- if you have 40% of the nights per year- you don't pay child support? Is there a definitive guide on this?
 
From what I understand (and more knowledgeable people here will chip in), EOW and one day during the week is not offset.
 
1) There is no official rule regarding how to count for the 40%. The method of counting is not even standardized. Some judges do hours, some judges do overnights. The judges that do hours sometimes allot the entire school day to the custodial parent, sometimes they split it. It's a wild west.


I suspect the most common counting method would be "overnights". In your case, he would have Friday, Saturday, Sunday, and two Wednesdays for every 14 day cycle. That's 35.7%, so he does not qualify. He is also


An "hours" judge usually makes it even worse for the "lower custody" parent by allotting most neutral hours to the "higher custody" parent, so that would not help him at all. Currently, he is at table CS.


2) Even if he was at 40%, that is just the threshold when a judge can consider deviating from table CS. It certainly does not mean no CS.


3) In theory, if you are the higher earner, even if he was at 40%, you could be paying him CS. It would depend on your incomes.
 
Janus said:
3) In theory, if you are the higher earner, even if he was at 40%, you could be paying him CS. It would depend on your incomes.
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Informative. thank you. and yes- I do make more - 40%.

And I just found this great case:

https://www.canlii.org/en/on/onsc/doc/2013/2013onsc1801/2013onsc1801.html

this is significant:

" [19] It must be noted that “achieving the 40 per cent threshold does not necessarily mean that less child support will be paid, but only that the court can consider the issue under s. 9 of the Federal Child Support Guidelines” (Gauthier v. Hart, 2011 ONSC 815 (CanLII), [2011] O.J. No. 1169).

[20] In fact, it is not that the “court can”, but rather, the court must proceed under s. 9 when the 40 per cent access threshold is achieved. It is clear from the wording of the legislation that s. 9 is imperative; therefore, when the court finds that a parent is exercising access or custody 40 per cent or more of the time, the court must fix child support in accordance with the three factors listed in s. 9 of the FCSG.

[21] Under s. 9 there is no presumption that the Guideline support amount is appropriate. Rather, support is determined by applying the three factors, informed by the evidence provided by the parties.

[22] The onus of proving that the 40 per cent access threshold is met falls on the spouse seeking to invoke s. 9 ."

***

just in the process of noting it up.
 
Are you both making the same wages?

even in a 50/50 share if you are not making the same then child support is to be offset.

ex: 40k parent A= child support of 360 a month one child going to parent B
20k parent B= child support of 160 a month one child going to parent A

So parent A pays the deffence of 360-160=200 to Parent B
 
good_mom said:
Are you both making the same wages?

even in a 50/50 share if you are not making the same then child support is to be offset.

ex: 40k parent A= child support of 360 a month one child going to parent B
20k parent B= child support of 160 a month one child going to parent A

So parent A pays the deffence of 360-160=200 to Parent B
Click to expand...

No- I make about 30-40% more. But he doesn't want 50/50....I suspect that he's just concerned about getting to the 40% mark...when his sister was trying to discuss this with us she was actually saying "well, how many days a week can he see her?". And was out loud doing the calculation in her head.
 
good_mom said:
Have you been 50/50 shared? for how long?
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We're not 50/50. We have defacto joint custody but there is an access schedule in place. We generally both make major decisions on health care. Schooling is a fight.

Dad spends 10 hrs a week with her currently. Wednesday afternoons and one day on the weekend all day. Visits are supervised (private company for three months- and now his sister), as there are safety concerns which we're both working to resolve. There was never a restraining order in place- but there are bail conditions.

Dad is not paying CS as he is currently "covering" my share of the mortgage of matrimonial house that is up for sale. we split all other carrying expenses.

This has been in place since February 2018 when we separated.
 
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