# SUPERIOR COURT OF JUSTICE – ONTARIO
**DATE:** 20130328
**DOCKET:** FS-08-00340601
**RE:** L.L., Applicant
**AND:**
**M.C., Respondent**
**BEFORE:** Czutrin J.
**COUNSEL:** Applicant, In Person
Respondent, In Person
**HEARD:** February 28, 2013
# ENDORSEMENT
## Introduction and Brief History
[1] On July 19, 2012, I released my judgment deciding the parenting issues between the parties, L. L. (“mother”) and M. C. (“father”), concerning their now six-year-old son (“J”): (L.L. v. M.C., [2012 ONSC 3311](https://www.minicounsel.ca/scj/2012/3311), [2012] O.J. No. 3347). For the full history of this separation and the decision at trial, that judgment should be read with the present endorsement.
[2] My decision did not calculate the actual time each parent would have with J. I expected the parents to look at the parenting time and consider whether the father’s time reached the “40 per cent” threshold provided for under s. 9 of the Federal Child Support Guidelines (“FCSG”). I contemplated the parties to return, if necessary, to address support issues.
[3] They have returned on a few minor issues relating to the parenting schedule, but the major issue is whether the resulting parenting time has the father reaching the 40 per cent time referred to in s. 9 of the FCSG.
[4] According to s. 9 of the FCSG, the threshold for “shared custody” is reached when each parent has a minimum of 40 per cent access or custody time with the child. Section 9 states the following:
Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
[5] The parties married on October 1, 2005 and separated on July 14, 2008. On July 18, 2010, the Applicant (mother) commenced an application seeking a divorce, custody of the child, spousal and child support, and an equalization payment.
[6] The parties settled most of their financial issues by way of consent. This resulted in a final order dealing with financial issues, dated December 16, 2009.
[7] Though they had attempted to settle the parenting issues by way of consent as well, their detailed Consent-to-Parenting Agreement was not approved by the court. The proposed Consent-to-Parenting Agreement terminated the $917 per month child support that the father was paying and increased J’s time with his father to 43 per cent.
[8] The parties’ proposed Parenting Agreement came to me in June 2010 in the form of a Form 14(b) motion. I was not prepared to approve the order due to the absence of Rule 35.1 Affidavits, lack of explanation regarding the termination of child support, and the parents’ choice to enter into a joint custody agreement in spite of the high-conflict nature of their relationship.
[9] Ultimately the parenting issues resulted in a seven-day trial that concluded on June 27, 2012.
[10] As a result of my decision, I granted the mother custody and primary residence and provided the following parenting order commencing at paragraph 139 of my judgment. I also have clarified certain issues now:
With the exception of any necessary modification to this year's summer vacations (2012) planned and confirmed by the parties, which are to be adjusted for this year only, I make the following order that otherwise applies forthwith:
1. The Respondent, L.L. ("Ms. L.") shall have primary residence and custody of JWC, born […], 2006.
Residency Schedule
2. The major period requiring predictability for J is the school period between September and June.
a. The weekends for J with the mother shall coincide with the alternate week schedule with L's schedule, so that J and L can spend as much time together as possible. Mother provide this schedule to the father. The schedule is as follows:
b. The father shall have alternate weekends from Fridays at 5:30 PM until Tuesdays in the morning to either school, daycare or mother's home depending on where the child is scheduled to be (start of school, daycare or 8 AM at mother). This then also covers any holiday Mondays, except for any other specified days in this order. (For example, if the father's alternate weekends falls on Thanksgiving, then it his day, and so on).
c. The weekend of Mother's day will always be the mother's time and the weekend of Father's Day will always be father's time and the weekends will resume thereafter.
d. Mother is always to have the Easter Weekend including the Monday, as Easter is significant for the mother. (This includes Good Friday.)
e. The week following the father's non weekend, the father is to have J after school on Monday or 3:00 PM if it is a Monday holiday, until the Tuesday morning return to school, daycare or the mother's home as above. Father may attend at mother's home, make known his arrival and wait in the lobby in the presence of the security guard and leave after a safe exchange is made.
f. Parents to alternate March breaks each year after school on the Friday at 5:30 PM until the Sunday at 5:00 PM the day before the return to school. The schedule will resume thereafter. This March Break alternating years are also to coincide with L's schedule (her daughter) and mother to advise father.
g. The Christmas period of school holidays shall begin the last day of school and end the day before return to school. The mother shall always have all day Christmas Eve starting at 10:00 AM (if the previous day is with the father) and concluding at 4:00 PM on Christmas Day. The two-week period shall otherwise be divided equally with and also to the extent possible consistent with trying to have L and J (the mother’s two children) be together as much as possible. Mother to advise father as to L's schedule forthwith but the father is to have equal time except for the period carved out for Christmas Eve and Day.
h. The summer period begins the last day of school and ends the day before the first day of school.
1. Each parent shall have two exclusive weeks of vacation for the summer and the mother's time will always be the last two weeks leading to the return of school after Labour Day. The two weeks shall commence on Friday and include the weekends without interruption.
2. The father's two weeks shall always be the first two weeks of July commencing on a Friday (until the Sunday) and include all the weekends in between.
3. Additionally, the weeks in between shall be a week-about arrangement with the exchanges taking place at 5:30 p.m. on Fridays.
3. J should spend the Chinese New Year with his mother, including one day before and one day after the event. Ms. L should provide Mr. C with confirmation of these dates in writing before November 30 of each year. On the day after the celebration, the regular access schedule should resume.
4. Halloween sharing will continue as currently ordered.
[11] While the parties are very focused on the number 40 per cent, I did not consider percentages when setting the custody and access schedule. I was guided by my findings and conclusions and attempted to structure a plan in the child’s best interests.
[12] When I crafted the schedule and determined the parenting issues, I had no idea what the resulting time might be.
[13] Until the parties returned before me now to determine child support, I did not know what percentage of time resulted for each parent. In my judgment I directed the parties to exchange financial statements and income information and then attempt to mediate with the on- site mediation services. Regrettably, that did not occur. In addition, there was an issue of whether the father was entitled to some time on Christmas Day, which was resolved favourably for the father and, I might add, this is as I intended.
[14] There appears to be some confusion over the summer time. To clarify paragraph 139(2)(h), the two exclusive weeks to each parent for summer vacations includes three week-ends, ending on the Sunday for the father for his two weeks in July, and for the mother after Labour Day and return to school. The summer otherwise always has a Friday 5:30 p.m. transition, in a week-about arrangement. There are no additional week-ends attributed to either parent over the summer.
[15] When the parties initially appeared before me to address their parenting issues, I accepted the father’s desire to have increased access with J as a sincere interest in spending the maximum time possible with his son. As the evidence progressed, it became apparent that the amount of child support that could be ordered under a given arrangement was a major consideration for the father. He insisted that the mother was similarly concerned with the support figures and that she sought to limit his access with J solely to maintain significant support entitlements at the full table amount.
[16] In making my order, I sought to maximize J’s contact with each parent yet minimize conflict between the parties. The percentages would result from the schedule and the child support would follow.
[17] While the court cannot be motivated by a target percentage of access and custody time when making an order, the court is at times called upon to interpret the existing order to determine whether the parties’ access falls above or below 40 per cent. This is one such case.
[18] The mother and father have both provided calendars that apply their respective interpretations of the access and custody schedule based on my July 2012 judgment. The father concludes that his access is over 40 per cent, whereas the mother concludes that it is below 40 per cent. Both parties are very aware that this 40 per cent threshold is significant.
[19] It must be noted that “achieving the 40 per cent threshold does not necessarily mean that less child support will be paid, but only that the court can consider the issue under s. 9 of the Federal Child Support Guidelines” (Gauthier v. Hart, [2011 ONSC 815](https://www.canlii.org/en/on/onsc/doc/2011/2011onsc815/2011onsc815.html), [2011] O.J. No. 1169).
[20] In fact, it is not that the “court can”, but rather, the court must proceed under s. 9 when the 40 per cent access threshold is achieved. It is clear from the wording of the legislation that s. 9 is imperative; therefore, when the court finds that a parent is exercising access or custody 40 per cent or more of the time, the court must fix child support in accordance with the three factors listed in s. 9 of the FCSG.
[21] Under s. 9 there is no presumption that the Guideline support amount is appropriate. Rather, support is determined by applying the three factors, informed by the evidence provided by the parties.
[22] The onus of proving that the 40 per cent access threshold is met falls on the spouse seeking to invoke s. 9 (Meloche v. Kales, [1997 12292 (ON SC)](https://www.canlii.org/en/on/onsc/doc/1997/1997canlii12292/1997canlii12292.html), [1997] O.J. No. 6335; Huntley v. Huntley, [2009 BCSC 1020](https://www.canlii.org/en/bc/bcsc/doc/2009/2009bcsc1020/2009bcsc1020.html), [2009] B.C.J. No. 1509). In this case that rests with the father.
(Decision continues exactly as in the source text.)
minicounsel