How is parenting time calculated?
Calculating parenting time can be simple if there is an easy set schedule, such as a 50/50 week-on/week-off rotation. However, how do you calculate 20% or 35%?
Parenting time can be calculated in hours, days, or weeks. Whichever calculation is used, it should be accurate and precise, and time should not be “deemed” by the Court if it is not supported by evidence. Recently, the Court of King’s Bench calculated parenting time based on hours as opposed to days, but either method of calculation is supported by law. Time spent in the care and control of the parent, including time spent in school or sleeping counts towards the parent’s time.
Courts have noted that when calculating shared parenting time, there is no one correct way to approach the calculation. Court calculations based on days where the children were in care of the parent, or calculations on an hour by hour basis, have been used and upheld on appeal. However, Courts have cautioned that the calculations must be based on actual evidence, and not just rough estimates. In short, precise calculations are necessary! We have listed some interesting decisions on this popular topic:
Cases and court comments:
LC v ROC, 2007 ABCA 158:
Takeaway: Parenting time should be calculated based on actual evidence, not rough estimates.
“There is no place for "deeming" parenting time to be what it is not. For the purposes of calculating child support, the percentage allocation of custody time must conform to the actual evidence on this point. To permit a court to deem a lesser percentage of parenting time to be equivalent to the 40% threshold in the Federal Child Support Guidelines would permit a court to circumvent the threshold set by Parliament. This must not be done.”
Froom v Froom, [2005] OJ No 507 (Froom)
Takeaway: That a calculation based on hours, instead of days, is more accurate and precise.
“[5] Counsel for the appellant submitted that if hours are used to calculate the time under s. 9 of the Child Support Guidelines, it produces figures of 36.7% for 2003 and 32.09% for 2004 of time during which the children were under the care of the father. Counsel for the father concedes that the hours calculation produces figures less than 40% for each of the two years. In my view, the hours calculation produces an accurate figure in this case, and the days calculation produces an erroneous figure. “
Mehling v Mehling, 2008 MBCA 66 (”Mehling”)
Takeaway: That calculating by the day instead of by the hour is also reasonable, and that it is up to the Judge’s discretion which one should be used.
“While I would not categorically rule out an assessment on the basis of hours, it seems to me that an assessment of the time that a parent is with, or responsible for the children and their needs, on the basis of days or weeks, or portions thereof, will be a more realistic approach to the analysis than an hourly accounting. That being said, the approach to be used for the assessment of time is within the judge's discretion to determine.”
Desjardins v Bouey, 2013 ABQB 714 (“Desjardins”)
Takeaway: A minute-by-minute calculation may be unseemly, but it is a more fair way of calculating time.
“I recognize that there is something unseemly about parties getting out their stopwatches, and it is hard not to conclude that the purpose of child support may be lost upon parents who engage in minute-by-minute calculations. The Court cannot, however, ignore that many successful parenting arrangements entail split days, during which each parent is truly responsible for a child for a part - often an important part - of a single day. This is not to detract from the concern that the calculation should account not merely for time spent, but for time caring and being responsible for a child. Rather, it is to say that this concern is not served by diminishing the significance of either parent's time spent in the enterprise of truly caring and being responsible for the child.
In other words, the quantitative determination of whether the 40% threshold is met also entails a qualitative evaluation. The Court must look to and calculate the allocation of time spent caring and undertaking responsibility, and not merely at parenting time as ordered by the Court or agreed upon by the parties. That understood, it remains open to the Court to examine each parent's time spent caring and being responsible for a child on an hourly basis.”
