Shared Custody: 40% Rule

What Is Shared Parenting Time?

Under the Divorce Act, shared parenting time is an arrangement where a child would spend at least 40 percent of their time with each parent. This was formerly referred to as a shared custody arrangement or a shared custody situation.

Shared parenting time is different from decision-making responsibility. A custodial parent could have sole decision-making responsibility while still sharing parenting time with the other parent. Likewise, parents can share decision-making responsibility even if one parent has custody of the child less than 40% of the time. 

How Does 60/40 Schedule Work?

While a 50/50 parenting arrangement would be ideal, it is not always feasible due to other responsibilities, budgets, or scheduling conflicts. A 60/40 schedule is the next best thing, as it provides each parent with a roughly similar amount of time without undue hardship to any party involved.

To make this arrangement work, it’s important that both parents get along, are capable of cooperating with one another, and can provide roughly a similar amount of support during their time with the child.

Some common parenting arrangements include the long weekend schedule, the 4-3 schedule, the 2-2-5-5 schedule, and the 2-2-3 schedule. 

• Long weekend/Extended weekend schedule. In this arrangement, Parent 1 has the right of access to the child from Monday morning to Friday early afternoon. Parent 2 then spends time with the child from Friday afternoon to Monday morning. In this arrangement, Parent 2 usually drops the child off at school or daycare on Monday mornings and picks them up on Fridays.
• 4-3 schedule. For this arrangement, Parent 1 has the child for four nights of the week, and Parent 2 has the kid for three nights. It is quite similar to the long weekend schedule, except that both parents could spend part of the weekend with the child, depending on the decided schedule.
• 2-2-5-5 schedule. Each parent alternates spending two days and five days respectively with their child. Parent 1 spends time with the child for two days, and then Parent 2 does the same. Parent 1 then spends five days with their child, and then Parent 2 gets their five days.
• 2-2-3 schedule. This arrangement is similar to the 2-2-5-5 schedule but with alternating weekends. Parent 1 spends two days with the child, and then Parent 2 gets two days. Then, the child goes back to Parent 1 for three days, and the schedule repeats with alternating parents.

Child Support and the 40% Rule

Calculating the amount of child support owed will differ if you and your former partner are sharing parenting time. The law in Ontario provides that shared parenting exists where a parent exercises access or has physical custody for no less than 40 percent of the time over the course of a year. This works out to be 146 days or 3504 hours in one year. In these cases, the Federal Child Support Guidelines permit a court to deviate from the usual guidelines.

Deciding whether this 40% threshold has been met can be challenging. Some judges prefer a strict mathematical approach and count each parent’s custody or access by the hour. Other judges prefer a more functional approach. To complicate the issue further, a parent who has access for part of the day (such as midweek evening access) doesn’t get credit for the entire day when determining whether shared child custody exists.

However, once the 40% threshold is met, there is no exact science to determine how much child support is owed. Meeting the threshold merely allows the court to deviate from the Child Support Guidelines. For example, if one parent meets the 40% threshold, and the other parent has the child for 60% of the time, it should not be assumed that the parent who has the children 60% of the time necessarily has higher costs than the parent who has established that he or she has custody 40% of the time.

The court will consider the amounts set forth in Section 9 of the Federal Child Support Guidelines, the increased costs of shared custody, and the conditions, means, needs, and other circumstances of each parent and of the children. Section 9 promotes flexibility and fairness and leaves discretion to the judge to consider the circumstances. After weighing the evidence, the court could ultimately decide that no deviation is necessary and order the child support payment amount pursuant to the guidelines – but when shared custody exists the court can order an amount different than prescribed in the guidelines.

It is worth noting that the Supreme Court of Canada has determined that a child should not suffer a noticeable decline in their standard of living from a change in the parenting regime. In other words, if there is a change in decision-making responsibility and child support must be re-calculated, the court will prevent a drastic reduction in child support.

Get in Touch with the Professional Family Law Lawyers at Gelman & Associates

Determining the appropriate child support amount when shared parenting is at play can be challenging. If you think you meet this 40% threshold, speak to one of the experienced lawyers at Gelman and Associates to see if you might qualify for a reduction in child support.