COURT FILE NO.: FC-15-1562-1
DATE: 2018/12/31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Brennan Cameron
Applicant
– and –
Leanne Cameron
Respondent
Sarah Kennedy, Counsel for the Applicant
Rodney Cross, Counsel for the Respondent
HEARD: In writing
SUPPLEMENTARY REASONS FOR JUDGMENT
Justice Engelking
[1] Mr. Cameron brought a Motion to Change which was heard on August 31, 2018. Reasons for Judgment were released on September 4, 2018, which resulted in the primary residence of the two children of the marriage, Makayla and Kinley Cameron, remaining in Ottawa with Mr. Cameron, with specified parenting time to Ms. Cameron, as follows:
Commencing September 7, 2018, the Respondent shall have parenting time with the children for three weekends out of four during the school year. Such parenting time shall be from the end of the school day on Friday until Sunday at 5:00 pm.
Should a statutory holiday or a P.D. day fall on a Friday preceding the Respondent’s regularly scheduled parenting time, she shall have the children from the end of the school day on Thursday until Sunday at 5:00 pm. Should a statutory holiday or a P.D. day fall on a Monday after the Respondent’s regularly scheduled parenting time, she shall have the children from the end of the school day on Friday until Monday at 5:00 pm.
The children shall share holiday time, with the exception of summer holidays, and dates of special significance with both of the parents on an alternating or shared basis.
The Respondent shall have six weeks of parenting time during the children’s summer holidays from school, either consecutively or in blocks as agreed upon between the parties.
[2] With respect to the issue of child support, in paragraph 31 of the Reasons for Judgment, I invited submissions from the parties regarding whether or not the above noted changes to the parenting regime resulted in Ms. Cameron having the children in her care 40% of the time or more such that a section 9 of the Federal Child Support Guidelines set off would continue or not. The parties each provided the court with written submission, and these Supplementary Reasons for Judgment are in respect of that issue.
Position of the Parties
[3] Based on his calculations of Ms. Cameron’s time with the children, Mr. Cameron submitted that her total hours with the children over the course of a year is 2,714 hours. Relying on the case of Gilby v. Goddard[^1], his position is that Ms. Cameron does not meet the threshold of the 3,504 hours per year required for a parent to reach 40%. It is Mr. Cameron’s position that the children are consequently entitled to table support from Ms. Cameron.
[4] Ms. Cameron’s position is that when calculated as number of days per year, she has reached the 40% threshold required. Additionally, she has submitted that Mr. Cameron made a number of errors in his calculations, particularly as it pertains to his assumption that Ms. Cameron would consistently have two weekends with the children followed by one by him. Ms. Cameron’s position is that the set off support that the parties have been paying to date should continue.
Analysis
[5] In the Ontario Court of Appeal case of Froom v. Froom[^2], Catzman and Laskin JJ.A. for the majority found at paragraph 2:
[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 a determination…That approach [counting days as opposed to hours] and the 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.”
[6] Armstrong, J.A., dissenting, on the other hand, found that “the hours calculation produces an accurate figure in this case, and the days calculation produces an erroneous figure.” He would have allowed the appeal in that case and ordered table support.
[7] In the case of Gilby v. Goddard^3, Justice Parfett found at paragraph 10:
[10] As noted in Froom v. Froom, there is no universally accepted manner for calculating the amount of time children spend with each parent. However, there are several general principles that can be gleaned from the case law:
• It is desirable to be as precise as possible when determining the reality of the parent’s access and custody situation;
• Where an agreement is specific as to when access time starts and ends, an hourly accounting is preferable;
• Time spent at school or daycare should not be excluded from the time attributed to the primary residential parent;
• In order to reach the 40% threshold set out in section 9 of the Federal Child Support Guidelines, a parent must spend a minimum of 3,504 hours with the child over the course of a year;
• Where an agreement provides that one parent has the ‘right of first refusal’ to care for the child when the other parent cannot, the exercise of that right does not impact on the calculation of set-off support.
[8] As I have indicated above, Mr. Cameron has calculated that Ms. Cameron’s time with the children amounts to 2,714 hours per year. He calculates this amount based on a number of assumptions, the first of which is that the children will be with Ms. Cameron for two weekends followed by one by him, and then another two by her followed by one by him, and so on. According to his calculations, this results in Ms. Cameron having 26 weekends at 49 hours each for a total of 1,274 hours.
[9] Ms. Cameron submits that this calculation is erroneous. She states that the court order provides for Ms. Cameron to have the children three weekends out of four. She submits that this results in Ms. Cameron being entitled to have the children for 30 weekends over the course of the year, as opposed to 26. Additionally, Ms. Cameron submits that Ms. Cameron should be credited for Fridays, as she spends the day volunteering and/or attending field trips at the children’s school. Her overall calculation results in her having the children 154 days of the year.
[10] However, my order of September 4, 2018 was specific as it related to the times for exchanges and parenting time. Essentially, regular parenting time for Ms. Cameron was from end of school or 4:00 p.m. on Friday (extended to Thursday when available) to 5:00 pm on Sunday (extended to Monday when available). Even correcting for the number of weekends for which Ms. Cameron is entitled to have the children, or calculating the hours (starting from 4:00 p.m. on Friday or Thursday) from the calendar provided to the court by Ms. Cameron does not bring her to the 3,503 hours required by Gilby.
[11] Consequently, there shall be an order that Ms. Cameron shall pay to Mr. Cameron FCSG table support for two children based on her 2017 income of $96,382 of $1427 per month. Additionally, the children’s section 7 or extraordinary expenses shall be shared proportionate to the parties’ incomes of $96,382 for Ms. Cameron and $104,154 for Mr. Cameron. Taking into account the adjustment the parties have made since the September 4, 2018 endorsement, the timing of this decision and the flexibility contained in the language of section 9 of the FCSG’s, table child support shall commence as of January 1, 2019. The parties shall exchange their Notices of Assessments annually and child support shall be adjusted accordingly as of July 1 of every year.
Costs
[12] If the parties are unable to resolve the issue of liability for costs of the Motion to Change after 15 days, after having exchanged copies of their bills of costs and all offers to settle, the parties may schedule an appearance before me through Trial Coordination to make brief submissions, and I will make an order.
Madam Justice Tracy Engelking
Released: December 31, 2018
COURT FILE NO.: FC-15-1562-1
DATE: 2018/12/31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Brennan Cameron
Applicant
– and –
Leanne Cameron
Respondent
REASONS FOR JUDGMENT
ENGELKING J.
Released: December 31, 2018
[^1]: 2014 ONSC 1363
[^2]: 2005 CanLII 3362 (ON CA)