After a divorce, parents may need to decide how they can co-parent their children. Many different arrangements can be made, including having the children live full-time with one parent or organizing exchanges so the children can spend similar time with each parent. Depending on the arrangement, this can impact who must pay child support.
Generally, if each parent spends over 40 per cent of parenting time with the children, it is considered shared parenting, and a set-off amount of child support may be appropriate. In some cases, it may be difficult to calculate how much parenting time each parent exercises, as parents often have a flexible parenting schedule.
In this post, we will discuss how shared parenting time can be calculated and its impact on how child support is determined. We will also examine a recent case, Meier v. Sirman, 2023 ABKB 704, in which the court discusses how parenting time can be calculated if there is a dispute. The court found no shared parenting in this case, and the husband was determined to be the payor. This post will provide key takeaways for parents in co-parenting their children and understanding their child support obligations arising from their parenting schedule.
Generally, parenting time is considered shared if each parent spends at least 40 per cent of the time with the children. This may also differ if there are multiple children and each parent spends differing amounts of time with each child.
The court can consider the number of days each parent spends with the child. However, it may be that counting the days is not precise enough, and the court may require calculations of the hours that each parent spends with the child. The hours allocated to a parent would be when a child is in the care of or under the parent’s responsibility. This principle covers situations where the children are in school. The responsible parent during school hours would be the parent that the school would contact if there are any issues at school.
If a parent claims that there is shared parenting (i.e., they take care of the children over 40 per cent of the time), then they have the onus of proving this point.
There can be disputes that arise over whether or not parenting is shared. For instance, a co-parenting schedule often requires a degree of flexibility where each party may spend more or less time with the children than set out in a formal court-ordered schedule or a written agreement between the parties. However, since disputes may arise, it is important to properly record the time spent with the child, as the court will require this evidence.
It is important to determine if there is shared parenting, as it will determine which party will need to pay child support and how much needs to be paid to the other party. According to section nine of the Federal Child Support Guidelines, if a parent spends less than 40 per cent of parenting time with the children, they will be the payor for child support. The court will only require evidence of the payor’s income if parenting is not shared for the base amount of child support. However, extraordinary expenses are typically shared in proportion to each party’s income, so if a party claims these special expenses, both parties must disclose their financial information.
If the parties have shared parenting (i.e. each party spends at least 40 per cent of parenting time with the children), then the court can determine if a set-off amount is appropriate. A set-off amount considers both the parties’ incomes, so they will both need to provide financial disclosure. The party with the higher income will need to pay the difference between what each parent would pay as child support based on their respective incomes. The parenting schedule can also determine whether a party should pay any retroactive child support.
In the Meier case, the court had to determine whether or not there was shared parenting to order the appropriate amount of child support. The father argued that while the parties previously agreed that the mother would be the child’s primary parent, the schedule was changed after February 2019 so that each parent had shared parenting. He argued that he overpaid her child support from 2019 to 2023 as he continued paying the same amount as before shared parenting occurred.
The parties had a Provincial Court order from February 2019 stating that the mother was the day-to-day parent of the child, and the father was required to pay child support. However, the father argued that the parenting schedule was shared after this point.
The court determined that a count of the days would be too rough of an estimate, as the parties’ parenting schedule included four days out of 14 in which parenting time was divided as transition days. As a result, the court looked at the calculation of hours.
Each party had conflicting calculations of the hours spent with the child from 2019 to 2023. The father acknowledged, however, that based on his calculations, he was ten hours short of 40 per cent of parenting time for the year. He calculated his parenting time hours were 3,494, less than 3,504 (40 per cent of hours in a year). He claimed that he spent extra days throughout the year with the child, which would put him over the 40 per cent threshold.
The mother argued that while he spent some additional days with the child, she also had corresponding make-up days with him, such that he was not spending over 40 per cent of parenting time with the child. The father conceded that the mother did have corresponding make-up time that offset his additional days with the child.
The court concluded that even though the father was close to reaching the 40 per cent threshold, he did not reach the standard, and a court cannot deem a parent to have parenting time that they do not. A court is not permitted to circumvent the threshold set by the legislation.
As a result, the court did not find that shared parenting and child support were not readjusted as claimed by the father.
The court will consider a strict calculation of the hours spent with the child when determining if there is shared parenting. Even if a parent is short of the 40 per cent threshold, the court will not find that the standard has been met.
There are many different ways that parties may wish to arrange a parenting time schedule, which also depends on what would be in the child’s best interests. If shared parenting is appropriate, it may also affect child support obligations. Given that parenting schedules depend on the case’s specific circumstances, you should speak with our family law lawyers at Mincher Koeman, who are experienced in assisting parents with parenting time and child support. Our Calgary family law lawyers are dedicated to finding the best resolution for you and your children in your divorce case.
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