When is 50/50 not 50/50...when it is 40% What a fascinating argument this always becomes when Shared Custody is in dispute. There has been much confusion as to whether or not the 40% rule is real or some urban myth circulated by desperate fathers trying to wiggle out of paying child support, or if it actually exist as a point of law. The fact is, Section 9 of the Federal Child Support Guidelines became effective May 1, 1997, and states; 9. Where a 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 child support order must be determined by taking into account (a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. The 40% rule is not an urban myth, but it can be very confusing and is not a black and white conclusion the way that the support tables are. The most common situation that I have encountered in my practice has the father requesting Shared Custody of the children to reflect at minimum of 40% parenting time. This is often, and quickly, followed by protestations by the mother claiming that the father is only interested in reducing his support obligations which would be a terrible financial blow to the recipient mother. This is an incredibly sensitive area for both parents, and a difficult area for any divorce professional to facilitate. I never recommend that this be negotiated by lawyers, primarily because this is an issue that elicits heightened emotions and a great deal of struggle for power and control. This is far more likely to be de escalated with both parties and an unbiased facilitator in the room than with two zealous advocates who drive their own process and agenda to "win" for their client regardless of best interest of the child. It is important to point out that there has yet to be a hard and fast rule on how to calculate the percentage of time either parent is exercising with the children. Do you count the number of days, sleep overs, hours of parenting time? Do you include the time spent at school and if so is it attributed to the parent who dropped the children off or to the parent picking them up? One case that went to the Court of Appeal of Ontario, Froom v. Froom, divided the appellate justices 2-1 on the manner of calculating the percentage. The dissenting justice felt that the calculation of the number of parenting hours should be used to determine the outcome, while the Endorsement of the other two justices declared that the number of days would be counted to determine Shared custody in this case. Meaning, if you have the children 6 out of 14 days, you share 43% of the parenting responsibility and therefore you calculate child support based on Shared Custody. We also have to keep in mind that while any ruling provides precedence, every case has to be decided on its own merits and best interest of the children.
Posted on: Sat, 13 Jul 2013 02:10:44 +0000
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