Note: The rules and law may have changed since this article was first published. It is provided for archival purposes but you should consult with your lawyer for the current state of the law
When calculating the total parenting time of an applicant parent to establish shared custody in a child support dispute, every minute of access may count…or does it?
Under s. 9 of the Federal Child Support Guidelines (the “Guidelines”), a spouse must establish that they have exercised a right of access or physical custody of a child for not less than 40 percent of the time over the course of a year in order to invoke the maintenance regime for shared custody under s. 9. However, beyond setting the bar at 40 percent, the Guidelines provide very little direction as to how this threshold can be met. Therefore, a party must look to jurisprudence in order to establish a method of counting time which is acceptable to the Saskatchewan courts.
The parent who seeks the application of s. 9 of the Guidelines will bear the onus of proving that they have met the threshold therein. This may not be an uncomplicated analysis, however, as recent Saskatchewan case law has recognized two divergent methods to calculating parenting time. The first is a uniform mathematical approach, as established in Saskatchewan by Gore-Hickman v. Gore-Hickman. In this case, the applicant mother sought to discharge her onus by demonstrating that the 161 days of the year spent with her children met the 40 percent threshold. On the other side, the respondent father argued that counting the hours she spent with the children in her custody only amounted to 36 percent of the year. The court attempted to definitively deal with this issue by adopting the holding in Kolada v. Kolada, such that “the total number of hours that the child is in the care of, or in the responsibility of, each parent, rather than the number of days during which the child spends part of the day with each part” is the appropriate method for calculating parenting time. Therefore, a parent must be responsible for their children for a total of 146 days, or more, in order to meet the s. 9 standard. Mr. Justice Laing (as he then was) held that this interpretation embodied the ordinary meaning of the words contained in s. 9 of the Guidelines. By doing so, he explicitly rejected a counting method which may consider days or weeks of the year as opposed to hours. The parenting regime seemed to need sixty minutes.
The court was also clear that use of this method does not limit the counting party to only the time in which the children are physically in the custody or care of the parent. Time spent as the parent primarily responsible for the child may also be included in this calculation, regardless of whether or not that child is the parent’s presence. As stated in Gore-Hickman:
…it is fair to calculate even the hours the children are sleeping because if the child becomes ill overnight, it is the parent with whom the children is residing who is responsible for comforting the child or obtaining medical assistance. Similarly, it is appropriate to include in the calculation of hours the children spend in school because if there were a problem during hours the school administration would contact first the parent who has the responsibility during that period. Custody includes not only the hours spent in personal contract [sic], but also hours when the parent is, so to speak, on-call – when the parent has responsibility without contact… [Emphasis added]
Therefore, any activity during which the counting parent is responsible for the child may be included in the calculation, including sleep, school or extracurricular activities. This also means that simply being in attendance at the above-mentioned events, without the child being primarily in their care, will not qualify the time invested in the activity to count towards the total shared parenting time.
Case law defends this interpretation of the 40 percent threshold described in s. 9 with a view towards parliamentary intent of the Guidelines. It is suggested that the Guidelines are meant to produce a uniform and predictable result in such a contextually based and emotional area of law. Correspondingly, an hours-based counting method is “simpler, clearer, and more fair”. As such, an hours-based threshold ensures consistent results and maintains a common standard for all who may seek to pursue the benefits of shared parenting within s. 9 of the Guidelines.
The mathematical method of counting time is most consistently used in older case law prior to and around the beginning of the last decade. However, it is not without its appearance in recent cases, as well. In the 2010 Saskatchewan Court of Queen’s Bench decision, K.(H.A.) v. W. (T.J.), the mathematical calculation of the parenting time of the father is entirely determinative. While the Court pays lip service to the use of flexibility on this issue – the underlying value which is characteristic of the second method of calculating physical custody, to be discussed later – in this particular case, it was “relatively simple to calculate the parenting time by adding up the hours according to the current parenting regime”.  Ultimately, the Court holds in favor of the parent who asserts an hours-based calculation method, finding that the applicant father only parented for 29 percent of the time.  Thus, he had not discharged the burden of demonstrating shared parenting. This is a result which strongly echoes that which was found in earlier, strict mathematically-based decisions in this area.
A More Realistic Approach
The second (and emerging) method referenced in Saskatchewan jurisprudence on the topic is a “functional approach”. Shortly after the decision of Gore-Hickman, jurisprudence both in and outside of Saskatchewan began to move towards a more varied and flexible approach. For example, in Gieni v. Gieni, the Court held that the onus was to be met by counting days, not hours, in order to surpass the 40 percent threshold. As well, a British Columbia decision in 2003 disapproved of a rigid, formulaic time-keeping approach and held on the basis of whether the 40 percent level was reasonably achieved, without a firm accounting of the parent’s physical custody.
The authority cited by Saskatchewan courts for this approach is the 2008 Manitoba Court of Appeal decision of Mehling v. Mehling. Following this case, the mathematical calculation is but a starting point in the analysis of the 40 percent threshold. A functional method for calculating shared parenting time is a decision marked by flexibility, discretion and deference to the presiding judge. As stated by Hamilton, J.A.:
While I would not categorically rule out an assessment on the basis of hours, it seems to me that an assessment of the time that a parent is with or responsible for the children and their needs, on the basis of days or weeks, or portions thereof, will be a more realistic approach to the analysis than an hourly accounting. That being said, the approach to be used for the assessment of time is within the judge’s discretion to determine. [Emphasis added.]
The functional approach seeks to take into consideration the surrounding circumstances of the parties in order to determine whether custody is truly shared. Not only may the court consider the actual calculation of access time, they may also include other factors in their assessment. A non-exhaustive list of these factors was articulated by the courts in Mehling, and may include any of the following;
- The desirability of flexible custody and access times;
- The stated desire of the children to spend additional time with the parent seeking to meet the 40 percent threshold;
- Who is responsible for the children while they are at school or daycare;
- Who is responsible for meal preparation, including school lunches;
- Summer vacation and holiday arrangements; and
- Whether access has in fact been exercised in accordance with the governing agreement or court order.
While Mehling, as well as recent Saskatchewan cases, rests upon the functional approach after analyzing the options, the cases repeatedly emphasize that it will be up to the discretion of the presiding judge to determine which method is most appropriate to be considered in the surrounding circumstances of the parties. Deference will generally be given to any judge’s decision.
It is noteworthy that courts will also use parliamentary intent to defend their use of the functional approach to time-counting, just as they did in Gore-Hickman and similar calculation-based decisions. In Mehling, it was held that the functional approach upheld the equitable goals of the Guidelines and s. 9. The court values flexibility over predictability, in an attempt to allow judges to consider the individual circumstances of each family involved in the process. Such an approach is said to be more “realistic, and more holistic” than a hard-and-fast rule of the strict 40 percent standard.
The emergence of the functional approach to calculating time may be a response to those situations where (based on the Mehling criteria, for instance) the courts observed that families, who for all intents and purposes enjoyed shared parenting, were arbitrarily and artificially forced into the mold of “primary caregiver vs. access parent” based on the earlier, rigid approach.
In examining the two methods used by the Court to determine shared custody, what remains clear is that no counting method has definitively been ruled out by the courts. Whether it be a strict, hours-based approach, one using days, weeks, or even an inference of shared custody drawn on the basis of the factors in Mehling, there is precedence for each method found in jurisprudence. The decision of which method to use will depend on the presiding judge in each case. From a practical perspective, this may allow counsel the opportunity to present a wider range of options to their client leading to a course of action. While it may be problematic for predictability, it allows the skilled advocate to tailor their argument to the unique facts of their client’s case.
What also remains clear is that there is some mathematical component to meeting the 40 percent threshold and a calculation of some sort is the starting point in any analysis of shared parenting situations. For more clear-cut cases, such as K.(H.A.) in which the applicant parent falls well below the threshold in s. 9, this may be the end of the analysis, as well. However, cases which may be considered border-line – those which approach the 40 percent threshold without surpassing it – may allow for some wiggle room with regard to the standard through the flexible and functional approach. By including the factors outlined in Mehling in the analysis, as well as any other fact-specific circumstances of the family, the court may find that although a parent may not meet the 40 percent standard in the strictest sense, the parenting situation may be truly that of shared parenting so as to bring the family within the scope of s. 9.
 Tonita v. Fenske, 2009 SKQB 443 at para. 22, 2009 CarswellSask 734 (SK.Q.B.) [Tonita].
 See ibid. See also Probert v. Andres, 2008 SKQB 361, 2008 CarswellSask 596 (SK. Q.B.) [Probert].
 (1999), 187 Sask. R. 45, 177 D.R.L. (4th) 222 (SK. Q.B.) [Gore-Hickman].
 Kolada v. Kolada,  A. J. No. 609 (AB.Q.B.)[Kolada] in ibid. at para. 12.
 K.(H.A.) v. W.(T.J.), 2010 SKQB 128, 2010 CarswellSask 191 (SK.Q.B.) [K.(H.A.)].
 Kolada in Gore-Hickman, supra note 4 at para. 12.
 K.(H.A.), supra note 6 at para. 139, 142.
 Tonita, supra note 1 at para. 24.
 Gieni v. Gieni, 2002 SKCA 87 at para. 2, 29 R.F.L. (5th) 60 (SK.C.A.).
 Berry v. Hart, 2003 BCCA 659, 2003 CarswellBC 2990.
 2008 MBCA 66,  8 W.W.R. 52 (MN.C.A.) [Mehling] in Tonita, supra note 1 at 24.
 Ibid. at para. 42.
 Ibid., at para. 46.
 Mehling, ibid. See also Tonita, supra note 1. See also Probert, supra note 2.
 Mehling, supra note 13 at para. 43.