Share Parenting Time
What is the 40% Rule?
The “40% rule” is a critical concept in family law for determining shared parenting arrangements.
Section 9 of the Federal/(Alberta) Child Support Guidelines outlined the rule. The rule states that shared parenting applies when a parent has the child or children in their care at least 40% of the time. As set out below, this threshold reflects substantial involvement in the child’s life and affects both financial and decision-making responsibilities. It is not purely numerical calculation of time.
What is the financial impact of the 40% Rule?
This rule has the potential to significantly impact child support calculations and parenting time distribution. Once it has been demonstrated that the 40% threshold has been met, Section 9 of the Guidelines may then be turned to by a parent to demonstrate that a set-off to child support is appropriate — but more on that next time.
For many parents, the ultimate issue of how child support should be calculated and specifically whether there should be a set-off amount pursuant to section 9 of the Guidelines comes down to whether there is a shared parenting schedule or not. Due to this potential set off, this can be a serious point of contention amongst families in agreeing to enter into a shared parenting schedule.
How is the Court applying the 40% Rule?
In Desjardins v. Bouey, the Alberta Court of Queen’s Bench reviewed how to calculate the 40% threshold.
The father argued that he met the standard, while the mother disagreed.
The court examined various factors, including:
- the actual time spent with the child during weekdays, weekends, holidays, and special occasions.
- the nature of the time, distinguishing caregiving and decision-making activities from recreational engagements.
- the court evaluated parenting time over the entire year rather than isolated periods.
Ultimately, the father’s claims were found to be exaggerated, and he did not meet the threshold.
What is the “two-part” approach to the 40% rule?
This approach used above is often referred to as a two-part approach.
Step 1: Under the first part the court will look at the time in which parent a is responsible for addressing the child’s needs, even when the child is not physically with that parent (e.g., while the child is at school, daycare, or participating in extra circular activities).
Step 2: The second aspect emphasizes the value of meaningful interactions and “quality time” parents spend with their child, even if direct time spent together is limited. This highlights that the factors the court rely on will not be a strict numerical analysis of days or time spent with each parent by itself.
How can I best analyze the 40% rule in my own co-parenting relationship?
Cases since Desjardins have show that the court will scrutinize discrepancies between scheduled and actual parenting time under that same two-part analysis. In some instances, they may exclude time when the child was at school or daycare if the parent was not available to attend to their needs should that arise such in the case of a parent on holidays or traveling for work.
For parents navigating shared parenting arrangements, certain practices can help demonstrate adherence to the 40% rule.
- Keeping accurate records of parenting time, including dates, activities, and durations, is essential.
- Ensuring consistency between the scheduled and actual time spent with the child is equally important.
- Courts value meaningful involvement, such as caregiving and decision-making, over mere numerical claims.
- Maintaining a regular involvement is key since parenting time is assessed over an entire year.
What are my next steps if I believe the 40% rule applies to my co-parenting relationship?
In the event you believe this rule applies to you, the lawyers at Kahane Law Office can assist with reviewing the 40% rule and analyzing your specific family circumstances.