When Crossing the 40% Parenting Time Threshold Triggers a Child Support Reset - Douglas v. Faucher, 2025 ONCA 293

Douglas v. Faucher, 2025 ONCA 293

Court of Appeal for Ontario – Gillese, Gomery, and Pomerance JJ.A.

Appeal from: 2023 ONSC 5026, Justice Martin S. James

Heard: April 11, 2024 | Decision Released: April 16, 2025

Crossing the 40 percent threshold for parenting time is a material change

Introduction: When Parenting Time Becomes a Financial Game-Changer

What happens when the reality of parenting diverges from what was set out in a final court order?

In Douglas v. Faucher, 2025 ONCA 293, the Ontario Court of Appeal upheld a motion judge’s decision to retroactively adjust child support based on a material change in parenting time—even several years after the original agreement.

This case emphasizes that parenting time over 40% can trigger a move from full table support to a set-off regime under s. 9 of the Federal Child Support Guidelines, and that factual parenting patterns often matter more than outdated orders.

Background: A Shared Parenting Plan Interrupted

• Dianne Douglas and René Faucher married in 2002, separated in 2013, and divorced in 2015. They have three children.

• Mr. Faucher has been a quadriplegic since a catastrophic injury in 2010. He earns about $160,000/year. Ms. Douglas earns roughly $200,000/year.

• A parenting assessment in 2014 proposed a phased transition to equal parenting time by September 2018.

• Although this plan was partly implemented starting in 2016, Ms. Douglas later refused to complete the transition.

• Mr. Faucher brought a motion to change in 2019 under s. 9 of the Guidelines, claiming his time with the children had exceeded 40% since 2017 and requesting retroactive support adjustment.

  
  

Trial Decision: Retroactive Relief Granted Based on 40% Threshold

Justice James found that:

• The father’s parenting time exceeded 40% since 2017, constituting a material change in circumstances justifying variation under s. 9 (para 17). The parenting time threshold was crossed.

• The mother had resisted equal time in part to avoid recalculating support (para 10).

• Applying Contino v. Leonelli-Contino, 2005 SCC 63, the judge granted retroactive support relief effective January 1, 2018—a date favourable to Ms. Douglas.

• Although detailed post-2020 figures were lacking, a framework was provided for forward-looking calculations (para 12).

  
  

Parenting Time Drives Financial Fairness

Where parenting time exceeds 40% and materially departs from the earlier basis of support, child support may be retroactively varied under s. 9 of the Federal Child Support Guidelines, based on real-time care, not just court orders.

This is grounded in the Contino framework, which allows courts to consider means, needs, and actual parenting when modifying support obligations (paras 13, 21).

Appeal Decision: No Legal Errors, No Reversal

Ms. Douglas appealed on three grounds:

1. No material change in circumstances;

2. Parenting time did not exceed 40%;

3. Retroactive child support was wrongly calculated (para 15).

The Court of Appeal rejected all Ms Douglas' claims:

• The motion judge reasonably accepted the father’s detailed overnight records and oral evidence (para 18).

• His findings attracted deference, and no palpable or overriding error was found (para 22).

• The judge had discretion to select a fair start date (January 1, 2018), which helped mitigate overpayment while reflecting the timeline of increased care (para 21]).

  
  

Takeaways

• Parenting time logs are powerful. Detailed records persuaded the court that Mr. Faucher met the 40% threshold—despite the lack of a formal order to that effect.

• Court orders don’t freeze reality. Actual care matters more than historic paperwork when assessing financial fairness.

• Retroactive support isn’t rare. Courts can, and do, grant relief years later—especially when one parent has overpaid in silence.

• Appeal courts give deference to trial judges on discretionary financial matters, particularly in child support.

  
  

Conclusion: Equitable Outcomes Require Honest Accounting

Douglas v. Faucher reminds us that child support must reflect actual caregiving, and courts will protect fairness, even retroactively.

The decision also shows that shared parenting can evolve in practice—sometimes quietly—and that ignoring this reality won't hold up under scrutiny.