Background I am a father of two sons (10 and 6) who separated…

Thanks for clarifying, Matt. I appreciate it.

So your question is about addressing the existing status quo under the contract. As I understand it, you want to bring the access issue back to the table but your ex doesn't want to for fear that your time with the child will get close enough to 40% to reopen the support issue.

If that's the case, your ex is a little behind the law. That's not unusual. Up until a couple of years ago, if one parent could justify a 40% time with the child, then the support setoff would usually apply and the support is adjusted downward or may flow to the 40% parent. This led to a lot of silly arguments, such as how exactly to divide the child's time at school or what happens to the time with a babysitter. I've had to argue motions where the father wanted an order that the child go to his home over lunch at school, pretty clearly to get him to the 40% mark.

Those rules have been relaxed as a result of some higher court judgments over the last few years. These days in Ontario, the court will look at the whole picture, including the number of overnights on average over the course of a few weeks, who transports to and from school and daycare and extracurricular activities, who does more of the day-to-day activities like homework, who cooks the most meals, etc., etc..

While there's something to be said for the certainty of hard and fast rules, the court almost always opts for the flexible rule and leaves it up to the judge hearing the matter. This means that if you and your ex sign something that amends your access time (which is a phrase I hate, when there's joint custody it should be "care and control" or "secondary residence" rather than "access") to be the higher amount with the express proviso that it even if the new split of time approximates 40% that the child support is not affected. If you can do that, each of you gets what you want; you get more time and your ex continues to get full guideline support.

Having said that, if you execute that proviso and you have the child well over 40% of the time no matter how you slice it, ie by looking at the overnights, the transportation to and from school, the homework time, the meals cooked, and on and on, then you can still go to court after some time has passed with that new arrangement. If then it's obvious to a judge that there's actually a shared custody scenario and it's working well for the child you might well get your child support break.

You and your ex should be able to work through this if you assure her that your seeking more time has nothing to do with support. If she won't trust you and won't do it, then you have to go to court. Then you may well be faced with a judge who is assuming that you only want more time so you can argue for less support.

Put on your best persuasive face and give her those assurances, and you may well get what you want.

Good luck.

Ulysses

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