Ontario Family Law Blog : Barrie Lawyer & Attorney Brian Galbraith : Simcoe County, Canada Divorce, Separation, and Collaborative Law

Are you confused by the different types of custody? You are not alone.  Most people find the terms confusing. 

Many people think joint custody means the children spend equal time with both parents. Actually it means that the parents make decisions together. It has nothing to do with the amount of time the children spend with each parent. Day-to-day decisions are made by the parent in whose care the children are at the time. Major decisions such as those affecting the children's health, recreational activities, religious training and education are made together. For example, the parents do not discuss daily homework assignments but they should discuss whether to change the children's school. 

Effective co-parents discuss problems with the children's education, milestones, upcoming assignments and events. The degree of communication is up to you.

Sole custody means that one parent makes the major decisions. Of course, consultation with the other parent is usually wise as it keeps both parents feeling involved but if the parents cannot speak to each other respectfully, it may be limited. The other parent has a right to information about the children from all educators, health care providers and others involved in the children's lives.

Parallel custody is another type of decision making. In parallel custody the decision making is divided between the parents. For example, one parent may make the health care and educational decisions whereas the other parent may make the recreational activity and religious decisions. The purpose of parallel custody is to minimize the need for the parents to communicate but to keep both highly involved in the parenting. In reality, I'm not sure if it works. Sounds awkward or artificial somehow.

Shared custody is not about the decision making process but rather is based on the children's schedule: the children are with each parent about equal time. This can have implications on the amount of child support paid. To learn more about the impact on child support read this article.

Are you confused yet? One more term to go.

In split custody arrangements each parent has at least one child in their primary care and they usually have access to the other children who reside primarily with the other parent. Often the arrangement is that the children are together on weekends alternating between their parents' homes but they live separately during the week with one or more with each parent.

These legal terms are important but what is more important is that you and your ex find a way to parent peacefully, keeping the best interests of the children paramount.

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Co-parenting after divorce is not easy. It's like walking a tight rope at first. 

You want to be cooperative and communicate well but on the other hand how close is too close with your ex spouse?

Karen Buscemi wrote a great blog in the Huffington Post about keeping boundaries with your ex spouse. Karen says there are five things you should not do:

1. Don't give your spouse that sexy look.

2. Don't hug your ex spouse.

3. Don't give your spouse too much attention at social events.

4. Don't stay too chummy with your ex spouse's family.

5. Don't use your ex spouse's friends.

There are two sides of the coin. I fully agree with Karen but would add the following:

1. Don't give your ex spouse that dirty look like you are disgusted by them. How would you feel if you saw one of your parents give the other parent that kind of look?

2. Don't push your ex spouse away. If you need a hand, ask for help. If your ex needs a hand, help out. Treat your ex like a good neighbour.

3. Don't pretend that your ex spouse does not even exist when at social events. Occasional eye contact is polite. Maybe you could even say "hi" .  It wouldn't kill you.

4. You don't have to be enemies with your ex spouse's family. You can still be friends. There are a lifetime of events you will share so reach out and try to break the ice. It is awkward but worth some effort to make things comfortable for everyone, especially your children.

5. Your friends can be your ex spouse's friends. It isn't fair to ask them to keep secrets so remember that what you say or do may get back to your ex spouse. If you have something to hide, be careful. But, hey, who has something to hide?

Striking the right balance is a real challenge. Working with a Family Coach or Divorce Coach (both are therapists with special training to help clients move through the emotional stages of divorce) really helps. 

Walking on a tight rope is challenging at first. You might fall from time to time. Your spouse might fall too. Be patient. Put in supports to catch you when you fall such as a Family Coach. Raising kids is like being in a circus. Co-parenting is just another act! You can do it... one step at a time! 

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Guest post by our lawyer John Ewen

People will often say to me when I first meet them for a consultation “My ex and I are trying to figure out a fair amount of child support, but we’re stuck. Do we just use the Table?”

As with many questions about the law, the answer is: “It depends”.

The ‘Table’ refers to the table of Federal Child Support Guidelines. This is essentially a big chart that shows what payments parents make based on their income level and the number of children they are paying support for.

When Child Support is Paid

But when do you use it? The answer is, when children are considered to be residing ‘primarily’ with one parent (60% of the time or more), the law assumes that parent is bearing most of the costs of raising the children.

The idea behind the Table is to determine an amount the other parent (who has the children less than 40% of the time) should pay to make their ‘fair contribution’ to those costs of raising the kids.

But what happens if the children reside more than 40% of the time with both parents? How is child support determined then? Do we still use the Table?

Well, the answer is yes, but often times the Table amount is modified (reduced). This reflects the fact that when children live with both parents more than 40% of the time, they really have two homes, often with similar expenses (both homes need groceries for the kids, beds, furniture, toys and so forth).

Both of those households will have expenses in raising the children. That’s why having one parent pay the full Table amount in this situation isn’t always fair. To find out how child support is calculated in this situation, go to this article. 

How Do We Count 40% ?

Okay, so we know there is a threshold of 40%, and if your children live with you more than that, it’s ‘Shared Custody’ – child support is dealt with differently than the Table.

But who determines what 40% really means? How do we count it?

A lot of people ask me this. I get questions like:

“My children spend 3 days a week with me – 3 days out of 7 days in the week is 43% - isn’t this Shared Custody?”

“My kids spend more waking hours with me than with their other parent. That meets the test, right?”

“Whose custody are they in when they are at school or activities? If at the end of the day they are sleeping over at my house, isn’t all of that day considered time with me?”

The answer is, there is no clear answer! Different lawyers and Judges determine Shared Custody in different ways. Some Judges count only where the child puts their head down to sleep at night, some count the hours spent with each parent, some include school time or time spent at extracurricular activities, some just count the actual time spent at that parent’s home.

Many cases are disputed very far in our Court system because of this ambiguity. The Ontario Court of Appeal released a decision in 2005 called Froom v. Froom. This was an appeal from a Trial Judge’s decision to a higher Court.

The father had won at the Trial level because the Judge found he met the 40% threshold based on the number of days his children resided with him. On the appeal though, it was acknowledged that if the Trial Judge had counted the hours, and not days spent with the Father, he would not have met the 40% (and so would have paid Table support).

But the Court of Appeal upheld the Trial Judge’s decision – they said that there is no universally accepted method for determining the 40%. They said the Trial Judge’s method (counting days instead of hours) was consistent with what many Judges do – try to avoid rigid calculations and instead look at the bigger picture.

What does this mean for the rest of us? It means there is no right or wrong way to calculate the 40% rule. If you and your spouse are not able to reach an agreement on whether you have Shared Custody, a judge may have a lot of discretion to in deciding it.  

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In Ontario, child support can be changed if there is a change in circumstances such as a change in income or a change in residence of the children. Here are the steps. 

The first step is to determine the payor's income. (The "payor" is the person who has the children less than 40% of the time and is paying child support.) For employees, use line 150 of the income tax return. If they have recently changed jobs or your income has changed, you have to use the actual present income.

If the children are with each parent more than 40%, different rules apply. This is called "Shared Custody". Here is an article that explains the process. 

If the payor is self-employed, determining her or his income can be more complicated. Here is an article for you.

If you have  "Split Custody", child support is calculated differently. "Split Custody" means that each parent has one or more children residing primarily with them. For example, Dad and Mom have three children. Frankie and Tommy live primarily with Dad and see Mom every second weekend whereas Suzy lives primarily with Mom and sees Dad every second weekend.  

Here is how you calculate child support if you have split custody . 

If the children are with one parent more than 40% of the time, then the other parent pays according to the Child Support Guidelines. It is a grid that prescribes the amount of support to be paid.

To look up the amount of child support according to the Guidelines, go here.  

When you look it up, you  have to ensure you are using the correct grid for the province where the payor lives, the payor's income and the number of children. It's pretty easy to look up.

In addition to the base amount of child support according to the grid, if your children have "extraordinary" costs related to extra curricular activities, these costs are shared in proportion to the gross annual income of the parents.

For example, if your child is on an elite competitive swim team, competing in swim meets across the province and receiving coaching, the costs of this sport will be shared but if your child is just taking some swim lessons at the YMCA, the costs are not shared. The recipient of child support is to pay the costs of the swim lessons from the child support.

In addition, the cost of medical expenses, the after-tax cost of daycare, summer camps and post secondary education costs are among the costs shared. There are other costs that are considered "extraordinary" and are shared.

Once you have determined the amount of child support, you can change the existing agreement by consent. If you can't reach an agreement, you may have to go to Court.

You are wise to speak to a lawyer to ensure you do the variation correctly. You can do either a Variation of Separation Agreement or a Variation of a Court Order. If is it not done correctly, it won't be legally enforceable. It is easy to do it with a little help from a lawyer. 

If you have to go to Court, we can help. We frequently meet with clients and help them create all of the legal documents necessary to do a variation. It usually takes our lawyers about two hours to complete all of the documentation. Clients tell us this is a very good investment.

A lawyer can represent you in Court if you wish. Of course, having a lawyer at your side is best but it is costly. You have to weigh the costs versus the benefits.

In some cases, you can retroactively adjust child support. Generally, the Court will go back 3 years depending on the circumstances.

Much of family law is "shades of gray". Child support is more straight forward than many areas of the law. It really is not an issue that needs a judge to determine. With some legal advice, you should be able to resolve the amount of child support by agreement. If you are unsure, meet with a lawyer and get some advice.

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Child support in Ontario divorce cases is determined by the Federal Child Support Guidelines. It's simple. You take your income as set out at Line 150 of your income tax return and look up your obligation according to the number of children you have. Voila. 

But... and this is important... if your children are with you more than 40% of the time (that's called "shared custody"), you can get a break on the amount of child support. Okay. Sounds simple. But how do you count the time: in hours or days or what? 

In Andrew Feldstein's blog titled, Toronto Family Lawyers' Blog, he summarized an interesting case called Froom vs Froom, which is supposed to help give us direction on how to "count time". The Court of Appeals of Ontario says, generally, you should just count "days". So, if the kids are with you 6 out of 14 days, then you have them 43% of the time, and you have met the threshold. You may pay a different amount of child support than prescribed by the Federal Child Support Guidelines.  

Unfortunately, the Ontario Court of Appeal also says if a judge counts hours or uses some other method to "count time" it can be acceptable. So, the Froom vs Froom decision doesn't resolve the uncertainty. 

The age old adage may now be "More time means less money".

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