DATE: 20050216

DOCKET: C42318

COURT OF APPEAL FOR ONTARIO

RE:

DAVID WILLIAM ALLAN FROOM (Applicant/ Respondent in Appeal) -and- LYNN FROOM (Respondent/Appellant)

BEFORE:

CATZMAN, LASKIN and ARMSTRONG JJ.A.

COUNSEL:

Deborah R. Squires

for the respondent/appellant

Thomas G. Bastedo, Q.C. and David Pauls

for the Applicant/Respondent in appeal)

HEARD AND RELEASED ORALLY:

February 10, 2005

On appeal from the judgment of Justice Kendra D. Coats of the Superior Court of Justice dated July 23, 2004.

E N D O R S E M E N T

CATZMAN and LASKIN JJ.A.:

[1] The issue on this appeal is whether the trial judge erred in holding that Mr. Froom had custody of his children for over 40% of the time, thus triggering s. 9 of the Federal Child Support Guidelines, SOR/97-175. The trial judge found that Mr. Froom met the 40% threshold. In so finding, she relied on Mr. Froom’s evidence – which was not challenged – and she counted days, not hours. Mr. Bastedo candidly acknowledged that had she counted hours instead of days, his client would not have had the children for 40% of the time, either in 2003 or in 2004.

[2] There is no universally accepted method for determining the 40% and we do not think that this appeal is the appropriate case to make that determination. On the record before her, we are of the view that the trial judge did not err in the approach and the method she chose. That approach and that method were consistent with many trial decisions, which seek to avoid rigid calculations and, instead, look at whether physical custody of the children is truly shared.

[3] We are also of the view that the trial judge did not err in her appreciation of the evidence. Counting days, Mr. Froom’s calendars show that he had actual physical custody of the children for more than 40% of the time in 2003 and would have had custody for more than 40% of the time in 2004.

[4] As we have found no reviewable error in the exercise of the trial judge’s discretion, the appeal must be dismissed. Mr. Froom does not seek costs of the appeal and we make no order for costs.

Signed: “M.A. Catzman J.A.”

“John Laskin J.A.”

ARMSTRONG J.A. (dissenting):

[5] Counsel for the appellant submitted that if hours are used to calculate the time under s. 9 of the Child Support Guidelines, it produces figures of 36.7% for 2003 and 32.09% for 2004 of time during which the children were under the care of the father. Counsel for the father concedes that the hours calculation produces figures less than 40% for each of the two years. In my view, the hours calculation produces an accurate figure in this case, and the days calculation produces an erroneous figure.

[6] I would therefore allow the appeal, set aside the order of Coats J. and dismiss the application.

Signed: “Robert P. Armstrong J.A.”