Our top rated shared child parenting 40 percent rule disputes lawyers were pleased to receive the Canadian Family Law Firm of The Year Award of Excellence Award this year. One of the most asked about issues we get involves shared child parenting 40 percent rule disputes. In today’s family law article, Peter Graburn Senior Calgary family Lawyer explains the rules for Alberta with BC shared parenting commentary from Lorne MacLean, KC.
MacLean Law has offices across BC and in Calgary so contact us early to obtain winning strategies so you are not prejudiced in any Shared Child Parenting 40 Percent Rule Disputes.
Shared Child Parenting 40 Percent Rule Disputes
Shared Parenting. Isn’t this what most parents want for their children upon separation and divorce? But what is Shared Parenting? Most think Shared Parenting would be an equal 50/50 parenting arrangement, whether on a regular week-on / week-off or other equal (ie. 2-2-3; 2-2-5-5) basis. This is more Equal Parenting see: Shared Child Parenting vs Equal Parenting Time. But Equal Parenting may not always be possible for the parents (due to jobs, budgets or schedules) nor necessarily in the children’s’ best interest. Shared Parenting may be the next best parenting arrangement. So what is Shared Parenting, why is it important (as opposed to Equal Parenting), and how is it determined? Hiring skilled lawyers who know the tips and traps when shared child parenting 40 percent rule disputes involving you and your children arise.
Vancouver and Calgary Shared Child Parenting 40 Percent Rule Disputes Tel: 604 602 9000
Shared Parenting means any form of parenting arrangement where one parent has at least 40% of the total parenting time of the children. The federal and provincial Child Support Guidelines (as well as the Divorce and Family Law Acts) set out the obligation of co-parents to pay child support to each other. Section 9 of the Guidelines allows for a set-off of child support payable by each parent to the other “where a spouse exercises a right of access to, or has the physical custody of, a child for not less than 40 percent of the time over the course of a year”. Hence the “40 percent Threshold”.
So how is this 40% determined? Is it a weekly, daily or hourly calculation? Are other factors considered? Fortunately, the Alberta and BC Courts have addressed these issues.
British Columbia Approach To Shared Child Parenting 40 Percent Rule Disputes
In Berry v. Hart, 2003 BCCA 659 at para. 10) our Court Of Appeal raised some concerns over counting time and conversely whether meeting the over 40 percent threshold means an automatic reduction of child support payments:
[T]he issue is a matter of judgment not amenable to simply a time accounting exercise. I consider that in determining whether the threshold level for application of s. 9 is met the question is whether the paying parent spends such a sizeable percentage of time with a child or children that, on any reasonable view of the evidence and considering the advantage that may accrue to a child in spending the occasional additional day, part day or hour with a parent, one can say reasonably that the 40 percent or more level is achieved.
CLE BC’s Family Law Sourcebook points out that Examples of methods used in British Columbia to calculate the 40 per cent threshold include counting:
- the hours that each parent had the children in a two-week period (school hours attributed to the parent with care and control of the child at the time in question) (Crofton v. Sturko);
- the hours that each parent has the children over the year, including in the calculation school hours on the days that each parent is responsible for both picking up and dropping off the children at school (H. v. H.);
- the number of hours during a typical week that the children are in the care and control of the parent, with weekend access from Friday after school to Sunday evening counting as two days, not three (McAfee v. McAfee, 1998 CanLII 5579 (BC SC)); and
- the number of days that the parent had parenting time with the children to that point in the calendar year (S. (E.L.) v. S. (C.A.), 2016 BCSC 675).
Calgary Alberta Approach To Shared Child Parenting 40 Percent Rule Disputes Tel: 403 444 5503
Generally, Shared Parenting under Section 9 of the Guidelines is determined by the numbers of hours (not days) a parent has “contact responsibility” for the children. As early as 1999 (see Kolada v. Kolada, 1999 ABQB 409), Alberta Court of Queen’s Bench Justice Veit held that the appropriate way to calculate the percentage of time a child is in the care of each of its parents is to calculate the total number of hours that a child spends in the care of, or the responsibility of, each parent, concluding (at para. 17) that it is:
“simpler, clearer and more fair to account for the time spent by the children according to the number of hours they are …within a parent’s responsibility.”
Justice Veit returned to her “responsible hours” approach in 2014 (see: Jebb-Waples v. Waples, 2014 ABQB 26 at para. 37), stating:
“The better approach to determining whether a parent is entitled to the child support analysis that must be undertaken when the 40% threshold is reached is to count actual parenting hours, ie. hours during which a parent has responsibility for the children and to weigh the parenting responsibilities assumed while one parent has physical custody of a child. For example, with respect to school age children, the hours spent at school would be calculated according to which parent is the contact for a problem which arises during school hours.”
A Functional Approach
More recently, Justice Feth (while adopting Justice Veit’s “responsible hours” approach) raised a more subjective functional approach [see: Ramachala (Holland) v. Holland, 2020 ABQB 432] stating (at para. 44):
“No universally-accepted method exists for deciding whether the 40% threshold is met. Some judges favour a strict mathematical approach based on the total number of hours or days the child spends in the care or responsibility of each parent… Other judges have emphasized the functioning of the parenting arrangement, including whether the situation is in ‘spirit and reality’ shared custody.”
In JDL v. TLGM (2019 ABQB 562), Justice Kendall identified some of the other key variables in gauging “parenting responsibility” during school or daycare days, stating (at para. 18):
“Neither party led significant evidence of who was responsible for the children during school or daycare, who took the children to see doctors and dentists, or which parent dealt with the school and other third parties involved with the children.”
Finally, most recently, the Alberta Court of Appeal has weighed in on this discussion (see: EG v. DG, 2022 ABCA 129), holding (at para. 8):
“The burden is on a payor parent who seeks an adjustment of support on the basis that they have reached the 40% threshold in s.9 of the Guidelines to demonstrate that they have done so. Such a determination has both quantitative and qualitative consideration…” .
Section 9 of the Child Support Guidelines
Shared parenting. Simple, right? Not so much. Under Section 9 of the Guidelines, even after determining that a parent “exercises a right of access to, or has the physical custody of, a child” for more than 40 percent of the time, a Justice has extremely broad discretion to deviate from the Guidelines to determine the actual child support payable between the parents based on the increased costs of the shared parenting arrangement and the “condition, needs and other circumstances” of both the child(ren) and the parents [see: Shared Parenting Set-Off Support, )
Shared parenting. Not so simple. Call Us Early On To Get Set Up For Success
We know the most important asset of any relationship are your children. If you are involved in a Shared Child Parenting 40 Percent Rule Disputes case, it makes sense to contact top Canadian Family lawyers like those at MacLean Law.
