L(L) v C(M): Shared Custody and the Elusive 40% Threshold

A recent decision by Justice Czutrin of the Ontario Superior Court of Justice touches on a fiercely debated topic in family law: the impact of shared custody arrangements on child support, and specifically the inflexible 40% threshold set out in s. 9 of the Federal Child Support Guidelines (FCSG).

The case, which was heard on February 28, 2013, saw the return of the parties to court for clarification on whether their custody and access arrangement constituted “shared custody” pursuant to the FCSG.  In this thoughtful and fact-driven judgment, Justice Czutrin first responds to case law considering the appropriate approach to be taken by the court in such a scenario; he then contemplates the rigidity of s. 9 FCSG as well as the fairest methods of calculating access time.

Factual Background

This case arose out of a three-year marriage between a Mother, L.L, and Father, M.C., which resulted in one young child, J, who was six at the time of Justice Czutrin’s judgment.  The couple’s acrimonious relationship was fraught with abuse and control, leading Justice Czutrin to reject a parenting plan put forward on consent agreeing to joint custody and no child support (other than s. 7 expenses) holding that such an agreement was not in the best interests of the child.

On July 19, 2012, Justice Czutrin released his first judgment in the matter, dealing mainly with a parenting plan.  While the order contemplated the issue of child support, Justice Czutrin stated at para 49:

The parties are to provide updated financial statements…and then provide positions on child support and section 7 expenses…They shall then first try to resolve the issue through mediation, failing which I will determine the issue.

On February 28, 2013, this high conflict case returned to court.  The Respondent Father claimed that he had custody of the child, J, 40% of the time, and therefore the court should apply s. 9 of the FCSG in determining support.  The Father calculated the time the child was in his custody on a daily basis.  Alternatively, the Applicant Mother asserted that she had physical custody of the child more than 60% of the time, and that access time should be calculated by determining the number of hours J was in the care and control of the parent, not the amount of time that the parent is physically present with the child.

In the end, Justice Czutrin was unconvinced by the Father’s apparent desire for increased access time.  At paragraph 15, he stated,

When the parties initially appeared before me to address their parenting issues, I accepted the father’s desire to have increased access with J as a sincere interest in spending the maximum time possible with his son. As the evidence progressed, it became apparent that the amount of child support that could be ordered under a given arrangement was a major consideration for the father.

As Justice Czutrin points out, however, where a court determines that the 40% access threshold is achieved, it must fix child support in accordance with the three factors listed in s. 9 of the FCSG: a) the amounts set out in the applicable tables for each of the spouses; b) the increased costs of shared custody arrangements; and the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.  Yet, the onus falls to the party seeking to invoke s.9 to prove that the 40% threshold has been crossed.

Justice Czutrin then went on to note that, as the court recognized in Froom v Froom (2005, ONCA), there is no universally accepted method for how to calculate custody and access time.  Citing a 2008 Manitoba Court of Appeal case, Mehling v Mehling, the court recognized the importance of a flexible approach to calculating access time that allows the “judge to take account of the varied circumstances of different families.”

Section 9 of the Guidelines requires the courts to consider more than a simple mathematical comparison of the number of hours in a year and the number of hours of physical access exercised by the parent asserting shared custody. If a given situation establishes an unusually extensive pattern of access by the support payor which is consistent with the concept of shared parenting or shared custody, the reality of the situation should be carefully reviewed…If it is determined that a given situation is, in spirit and reality, one of shared custody, there is no governing method of calculation so long as the method used is reasonable. …

In this instance, however, the court noted that the custody and access schedule developed for the parties by Justice Czutrin was intended, given the parties high conflict, “to be precise and to facilitate counting of actual time without rounding up or down.”  As a result, Justice Czutrin opined that this is not a case where the Mehling approach applies.  In the end, Justice Czutrin sided with the Mother’s approach to calculating time, stating that,

The impact that the calculation in hours versus days has on the father’s access time is to reduce it by 16.5 hours every two weeks. Since the July 19, 2012 order sets firm start and end times for access, calculating in hours I find is reasonable and avoids inaccurately “deeming parenting time”. The mother’s approach to the calculations is the most accurate reflection of the parties’ reality.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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