“In respect of the first part of the [Contino] two-stage analysis, our Court of Appeal in Froom v. Froom, 2005 CanLII 3362 (ON CA) and other appellate courts in British Columbia (Maultaud v. Blair, 2009 BCCA 102 (CanLII) and elsewhere, have held that there is no universally accepted method for determining whether the 40 per cent threshold created by s.9 (of the Guidelines) has been crossed.
The two most common approaches to calculating access and custody time are in days, and in hours. If using days, to reach 40 per cent, the access parent must have the child in his or her care for 146 days per year. When calculating in hours, the 40 per cent threshold lies at 3,504 hours per year: L.(L.) v. C.(M.), 2013 ONSC 1801 (CanLII).
Cases decided after Froom have highlighted that the method chosen for calculating the 40 per cent threshold is often critical to the outcome of the support analysis in shared parenting situations. In L.(L.) v. C.(M.), Czutrin J. (as he then was) concluded that in light of the importance of this issue, it is desirable to be as precise as possible when carrying out the calculation. Justice Czutrin noted that the overwhelming weight of authority in Ontario and other provinces supports calculating the 40 per cent threshold on an hourly basis: Scott v. Chenier, 2015 ONSC 7866 (CanLII) citing L.(L.) v. C.(M.) at 23-39.
That said, in Froom, our Court of Appeal held that the trial judge there did not err in approach in choosing to calculate the amount of time that the child was in the general care and control of the parent on the basis of days and not hours.”