How do you count time to know whether you meet the 40% rule for child support?

Before you read this post about one of the finer details of child support, you might want to read my explanation of how child support generally works. You can find that at https://hutchesonlaw.ca/?page_id=24

One of the questions that often comes up in family law within the issue of child support is, how do you know if someone falls above or below the 40% threshold? There are quite a few court cases where a parent has been close to the 40% mark and there has been an argument about whether that parent falls over or under the threshold. If you are interested in reading one of the leading cases on this issue, you might start with this one: http://www.canlii.org/en/on/onsc/doc/2013/2013onsc1801/2013onsc1801.html?searchUrlHash=AAAAAQAVTC4uTC4gdi4gTS5DLiwgWzIwMTNdAAAAAAE&resultIndex=2

Usually when people are trying to roughly calculate 40% they count overnights. If you are counting overnights on a regular two week schedule, the threshold is 6 out of 14 overnights. When people get into more of a fight about the 40% threshold for child support, the answer of the courts is generally to count days (in which case the threshold is 146 days per year) and sometimes to actually count hours (in which case the threshold is 3504 hours per year). What is tricky is how you count hours where the child is not with either parent. Many people would think that you wouldn’t count the hours that a child is in school or with a nanny for either parent. That is not the approach that the courts have settled on though. Hours at school or with a nanny are counted towards the parent who is deemed to be responsible for the children at that time. If a parent drops a child off to school in the morning and the same parent picks that child up from school, then all of the hours in school will be credited to that parent (the theory being that that is the parent who is on call if the school were to report that the child was sick and needed to be picked up). More controversially, if a child is dropped off at school by one parent and then picked up at the end of the day by the other parent, the courts, for example in the case linked to above, have said that the school day should be credited to the “custodial parent.” Since what the court means by saying “custodial parent” in that way is – the parent who has the kids in his or her care most of the time – that seems, to me, like it runs the risk of putting the cart before the horse. If you assume that one parent is the parent who has the kids the most and then check that assumption by counting hours in a way that credits school hours to that parent, you are very likely to find that your original assumption was correct. It is possible that if you started with the opposite assumption, though, you might get the opposite result.

So what lessons should couples take from all this? If you are creating a parenting schedule (a settlement about custody and access issues), it would be wise to consider the issue of who will come and get the child if he or she has to be picked up from school? In my view, that is not only a useful agreement to have, it is also the best test for who is caring for the children during the school day. An answer to that question will also help prevent a difficult argument about counting time to determine the 40% threshold for child support.