Froom v. Froom (Ontario Court of Appeal): Calculating the 40% Threshold

Where a shared custody arrangement is in place between two separated/divorced parents (ie. where the access parent has physical custody of the child(ren) for at least 40% of the time), a reduction in the access parent’s child support payments may be warranted.

The issue in this case was whether the father (the respondent on appeal) had met the 40% s.9 Guideline Threshold for custody of his children. It was admitted by the father in this case that if an hourly based calculation was used by the judge to determine the amount of time spent with his children, then he would have failed to meet the 40% threshold, thus being unable to trigger s.9 of the Guidelines. However, if the judge performed his calculation by counting the number of days the children spent with their father, then the 40% threshold would be met, and s.9 of the Guidelines would be triggered.

The trial judge in this case counted the number of days the children spent with the father, instead of the number of hours. As a result, s.9 of the Guidelines was triggered. Given that child support may be reduced in a situation of shared custody, the mother appealed the decision. The Court of Appeal, however, dismissed the appeal, concluding that there is ‘no universally accepted method for determining the 40%’. The Court of Appeal was of the view that the trial judge did not err in her approach and/or the method she chose to do the calculation. According to the Court of Appeal, the trial judge’s method and calculation were not inconsistent with previous trial decisions. Avoiding the hourly calculation avoids having to use such a rigid and complicated method.

The dissenting justice in this case, however, concluded that in his view, “the hours calculation produces an accurate figure…and the days calculation produces an erroneous [one]”, especially given the fact that the father conceded to the hourly calculation producing figures less than the 40% threshold.

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