Did Kid’s Time After School Drop-off Count Towards Dad’s Parenting Time?
Even for those separated and divorced parents who have reached mutual agreement on post-split care for their children, the calculation of “parenting time” can become nit-picky and contentious.
This is all the more so, if one parent is trying to establish a “shared custody” situation as defined by the federal Child Support Guidelines. Under that shared custody regime, if the child is living with the support-paying parent for 40 percent or more of the child’s time, then there are special, more discretion-based support calculations that a judge can apply – often resulting in a lower level of support that is owed.
This was issue in a case called Hogeboom v. Hogeboom. The parents had one child together, and had separated after 8 years of marriage. As part of settling out their issues in court over child support, the father was ordered to pay about $2,000 a month, based on his high earnings and the fact that the child was living primarily with the mother. The father was given set access times which were to be gradually increased; over the next few years, the amount of support he owed each month was adjusted.
However, the father now claimed that his support obligations should be reduced because of a new development: The child was apparently spending more than 40 percent of the time with him lately. The father argued that the shared custody provisions of the Guidelines were now being triggered, and that the court could adjust the support amount in light of the changed circumstances.
The mother disagreed with the father’s position on this. As the court put it:
Here the parties do not agree on the method to calculate the time that [the child] spends with each of them, let alone the exact amount of time the child actually spends with them.
The father therefore brought a motion to change the most recent support order. In the context of trying to mathematically prove the Guidelines threshold had been met, the father argued that the time the child spent at school after the father dropped him off was to be counted as the father’s time. That would give him an extra 17.5 hours per week “with” the child – up from his current 35 hours – which was enough to newly-qualify for the 40 percent Guidelines minimum.
The court disagreed with this approach, pointing out that there was an existing access order in place, with access start-times and end-times spelled out. The father could not unilaterally try to exercise a so-called “right to access” beyond those specified times. Otherwise, he would essentially be encroaching on the mother’s time in order to reach the 40 percent threshold that he wanted to rely on in reducing his support obligations. This was not allowed.
The other flaw in the father’s reasoning was that the threshold was not necessarily reached through sheer hours the child spent with the father, but by looking at which parent had parenting responsibility over him. The court explained:
The issue before the court is not parenting contact, it is parenting responsibility. The father does not have parenting responsibility 40% of the time. He does not have 40% of [the child’s] overnights. Even the provision of meals is neither proven nor determinative.
Since the court refused to credit him with the additional 17.5 hours he was trying to claim, the father conceded that he fell short of the 40 percent mark. There had been no material change in circumstances to justify varying the amount of support he should pay.
For the full text of the decision, see:
Hogeboom v. Hogeboom, 2018 CarswellOnt 6932, 2018 ONSC 571